Assignment LAW 556 PDF

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Assignment forming part of the on-going assessment...

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WRITTEN ASSIGNMENT LAW 556 (JUNE 2019 PART B) LWB04R1 LECTURER’S NAME: MDM ROZITA BT OTHMAN GROUP MEMBERS: NUR SARAH ZAHIDI (2016239646) SERENA JAMES BERNARD (2016250662) SHARIFAH NURHIDAYAH AL-HABSHI (2017683644)

a) The issue is whether the will created by Danny was revoked by his act of burning out the will? The general rules of revocation is that a will may be revoked if the following formalities as set out in section 5 of the Wills Act 1959 are not observed. One of the methods of revocation is by destruction of the will. In general, a will may be revoked through the destruction of the will either by burning, tearing or any other form of physical destruction carried out by the testator or by another in his presence and under his direction with the intention of revoking it1. There are two elements that must be fulfilled for the will to be rendered as valid or otherwise be revoked. The will is revoked when the testator destroys the will physically with the intention of revoking it. Cheese v Lovejoy2 is the leading case in which it was said that ‘All the destroying in the world without intention will not revoke a will, nor all the intention in the world without destroying it; there must be the two’. In other words, the testator must have intention of revoking the whole, or part of the will while the act of destruction if carried out. In a circumstance where the testator has revoked his will under a mistaken assumption of law or fact, the revocation will be ineffective. In the case of Scott v Scott3, a will was held not to be revoked where it was destroyed under the mistaken belief that it has already been revoked. Similarly, in Giles v Warren4, the will destroyed by Danny under the mistaken belief that it was invalid, will not render the will to be revoked. Next, is the act of destruction. The intention to destroy is not the same as the intention to revoke. But nevertheless, a partial destruction by the testator himself is sufficient to revoke the will if, there is a clear evidence that the cancellation of the will was intended. In the case of Gill v Gill5, the intention to revoke must coincide with the destruction of the will. This was also illustrated in the case or Re Southerden (1925 6), where the deceased made a will leaving his estate to his wife before he travelled to America. Upon his return, he burned the will saying that as he had returned safely, his estate would pass to his wife on his intestacy. In fact, this was not the case and the deceased was mistaken. The court held that in the circumstances, his will 1 Section 12 of Wills Act 1959 2 [1936] P 43 3 [2011] 19 A 3d 302 4 (1872) 2 P & D 401 5 [1909] p 157 6 [1925] p 177

had not been revoked even though it had been physically destroyed by the testator himself. To apply, although Danny has physically destroyed the will himself through the act of burning, it will not be revoked by virtue of Gill v Gill as intention must coincide with the destruction of the will. Here in this case, in reference to Cheese v Lovejoy, there is a lack of intention of revoking the will because Danny was mistaken that his marriage to Kelly will make the said will useless, therefore, destroyed the will. In conclusion, the will is not revoked. The act of burning the will does not render the will to be invalid due to the lack of intention on Danny’s part to revoke the will. Therefore, the will is valid.

The second issue is whether Bella could make a claim in the above situation. Bella could make a claim if Bella could prove that the will is not rendered as invalid by the court. By referring to the first issue, since the will is not revoked and is still valid in law, Bella could therefore, make a claim for the residue of Danny’s estate.

B)

The first issue of this question is whether the Distribution Act is applicable to Jack’s remaining property. Section 8 of the Distribution Act 1958 states that where any person dies leaving a will beneficially disposing of part of his property, the provisions of this Act shall have effect as respects the part of his property not so disposed of, subject to the provisions contained in the will. This is called partial intestacy. This means that when a will has disposed a part of his property, the remaining property will be governed under this section. Additionally, the personal representative will be the trustee for persons entitled to the property under this act, unless the will states that the personal representative is entitled to take a part of the property beneficially. However, this is subject to his rights and powers for the purposes of administration. Hence in this issue, the 10 acres of land in Perth and the bungalow in Melbourne was not mentioned in Danny’s will, therefore, section 8 applies to this situation since these are properties that have not yet been disposed. In short, the Distribution Act is applicable to Jack’s remaining property. Second issue is then how would Danny’s remaining property be distributed under intestacy rules. Section 6 of the Distribution Act states that if a person dies as an intestate, the property will be distributed according to the provision of Section 6, which is from Section 6(1)(a) to Section 6(1)(j). For this question, we will focus more on Section 6(1)(g). Stated in Section 6(1) (g), if an intestate dies leaving a spouse, issue and parent or parents, the surviving spouse shall be entitled to one quarter of the estate, the issue shall be entitled to one half of the estate and the parent or parents the remaining one-quarter Hence, in this case since Danny died leaving a spouse, Kelly, his parents and two children living with his parents, thus, section 6(1)(g) can be applied as it fits all the people entitled to the remaining property. Thus, Kelly will be entitled to ¼ of the estate, his parents will be entitled to ¼ of the estate and his children will be entitled to ½ of the estate.

C) The issue is whether the gift in the will for Dato Mark’s sister is valid. Gifts are divided into several types namely specific gifts, general gift, demonstrative gift. Pecuniary gift and residuary gift. In the current situation, it is clear from the usage of the possessive word “the”

and “my” in the safe deposit box, that the jade bracelets are meant to be specific gifts. Specific gift, according to the case of Robertson v. Broadbent7, is characterised by two characteristics, it forms a specified part of the testator’s estate at the time of death and the specified part can be severed from the rest of the estate. In Re Slater8, the court held that in cases of specific gifts, the gift will be said to be adeemed when at his death, the testator has no gift similar to the description given in the will. The gift is also said to be adeemed as it has changed in subject matter.

In applying to the current situation, since there is only one jaded bracelet in the safety deposit box as the other one has been given to Datin Mary prior to Dato Mark’s death, Elen could only claim the one in the safety box. The second jade bracelet that is meant to be given to her is said to be adeemed as it has been given prior to his death and is of different subject matter from the one stated in the will.

Next issue is whether Dato Mark left RM50000 to Jeff of Joo. In order to ascertain wills in which there is ambiguity, the court can consider the surrounding circumstances and the existing declarations of parties in order to resolve the doubt. There are two ways in which the uncertainty may be solved.

Firstly, through the armchair principle. This principle observe the evidence of circumstances surrounding the testator when he made the will. In Boyes v Cook9, the court would place itself in the testator’s position and consider the circumstances by which he was surrounded when he made the will to assist the court in arriving at his intention. The use of armchair principle also enabled the court to establish the identity of beneficiary suchi n Charter v Charter, where a testator left property with the words “my son Foster Charter.” when in actuality his son died before the execution of the will. Itt turns out he had two more sons, William Forster Charter and Charles Charter. Charles was held to be able to take the property as he was living with testator and testator was in the habit of calling him Foster whereas William rarely saw 7 1883) 8 App Cas 812 8 (1907) 1 Ch 665 9 (1880) 14 Ch D 53

his father.

Next, if the ambiguity is not resolved by using the armchair principle, the court may opt to use equivocation. Equivocation arises when a description of an object or subject matter of a gift is applicable to two or more persons or things. In Re Jackson, the court held that where admission of evidence of surrounding circumstances may lead to ambiguity, the court may admit evidence of testator’s intention. However, if by using either one of this principle and testator declaration is still not resolved, the gift will fall under uncertainty. In applying to the current situation,

Dato Mark has

bequeath RM 50000 to his eldest son Jeff in the will. However, his eldest son is called Joo and the youngest son is called Jeff. The armchair may be applied here to determine the ambiguity of the will and if failed so, the court may use equivocation. If the intention of Dato Mark is yet to be determined, the gift will fall for uncertainty.

The last issue is whether Betty can claim for Eddie’s inheritance from Dato Mark. A will does not take effect until the death of the testator, a gift will lapse when the beneficiary has predeceased the testator such in the case of Elliott v Davenport10. The effect of failure of disposing of the gift under Section 19 of the Wills Act is that the failed gift shall be included in the residuary devise or bequest respectively, if any contained in the will. However, there is an exception to this rule provided in section 25 of the Wills Act which states that The gift to the beneficiary (child or other issue of the testator) who predeceased the testator will not lapse if the beneficiary leaves an issue (lineal descendants) who will then be the donee to the gift.

In applying to the current situation, Eddie had predeceased Dato Mark. Upon Dato Mark’s death he gifted Eddie with a rolex watch. Applying the exceptions to the doctrine of lapse provided under section 25 of the Wills Act, as Betty is a child of Eddie, she is entitled for the rolex watch that Dato Mark bequeath to her father.

10 (1705) 23 ER 935

D) The issue is whether Datin Mary is entitled to Dato’ Mark’s estate?

The general rule of the Islamic law of inheritance is that the property of a Muslim is automatically distributed under faraidh upon his death. But nevertheless, the testator may disposed 1/3 of his property to non-quranic heirs but with the consent of his quranic heirs. The portion of property that can be bequeathed by a testator under Islamic law is only 1/3 of the total assets available at the time of death, after the subtraction of the amount used for the testator’s funeral expenses and settlement of debts (if any). In the case of Shaik Abdul Latif v Shaik Elias Bux, a testator has the power to dispose by will of no more than 1/3 of the property belonging to him at the time of death. The residue must descend in fixed portions to his quranic heirs. Applying to the present case, Datin Mary who have converted to Islam last month was not sufficient to entitle her the estate because her conversion was done after the death of Dato’ Mark by virtue of the general rule of faraidh. However, Datin Mary could inherit the deceased’s estate if prior to the death a will was made to allow 1/3 of the property to be inherited by her. In my conclusion, Datin Mary may not be entitled to the deceased’s estate....