5163LAW Succession Law

Section A.

Accoding to P2D1(10) of succession act 1981, for a will to be viable, it must be written and signed by the testator or a representative of the testator for it to be viable. A will is written whenever an individual is still existing where he or she writes on how he or she thinks her properties will be distributed. It is not easy to revoke a will after the death of the person who wrote it, it can only be revoked when the person is still breathing. Whenever a person is alive, he or she can be able to answer the questions as to why he or she wanted the resources to be distributed that way. In many cases it is not easy to get a written will, it is normally a secret and if by any mistake the will land into the hands of the beneficiaries, it will bring chaos in the family whereby if they are not satisfied with the written will the parent will face rejection from the children who will feel that they have not to be rewarded as the other children or even one of the parents. Like in the case of Abigail and her family, if the will was out before she had died it could have caused chaos in the whole family. In order for a will to be legitimate, it must meet a number of formal criteria. A will must be written, signed, and witnessed by two persons in order to be valid. The witnesses must not be the will's beneficiaries or their spouses. Will-makers must have testamentary capacity, which means they must be legally and psychologically capable of making a will, for a will to be valid.

After the death of any person who wrote a will, there are always issues that have to rise like the debts that they owed other people. Probate can be granted exclusively to the executor named under the Will. Furthermore, if the Will includes immovable assets in multiple states, a probate is required.

According to schedule 2, it says that the people who are eligible of getting a share of the properties that have been left behind by the deceased are the, surviving spouse of the family and the children, the second people that can receive the properties is the immediate family that is the uncles and the aunties, the third people are the next of kin and finally the crown as can be witnessed in the case of Bosch v Perpetual trustee, (1938) AC 463. In the case of Abigail, everyone is surviving and everyone will be given according to what is written will.

According to this article, subsection 36A, will be used to allocate the properties to the children. This section says that if the spouse had more than one child, the children should be given equal properties. The interstate children should be given equal properties if only there is no surviving issue. If there is a surviving issue, then the children may not get the properties. Like in the case of Abigail there is an issue that is surviving whereby she was a gambler and she left behind a debt of 5,100,000 dollars. In the process of distributing these properties, I will ensure that at least every child has received one property. Any property that a deceased person leaves to and vests in his or her executor or public trustee upon his or her death is assets for the payment of his or her debts, and any disposition by will inconsistent with this enactment is void as against creditors, and the court shall, if necessary, administer the property for the payment of the debts. This clause will take effect without regard to the rights of anybody else encumbrances (mortgagees) or other encumbrances. The house that was to be given to the red cross according to the will should be sold so that the debt that she had can be paid. The money that they will get after selling the house should be added to the other properties of Abigail that are worth 1, 500, 000 dollars so that the money can be used in paying the debt that Abigail had.

The children of the deceased those who in the will be to receive more than one property should only be given one each plus the 50,000 dollars that every child was to receive. The money that was in her account was to be used to pay debts that should go to the local Casino. The children will not also be given more than one property, those according to the will who were to receive extra properties, should be taken away so that they can be able to use the property in paying the debt. It is not possible that the casino debt will easily be written off. If they will not pay the debt, they might be followed until they pay it back to the local casino.

Section B.

If the total debt was 4, 500, 000 dollars and not 5,100,000 dollars the extra properties that was to betake from them will still be retained. Such authority however lies with the court. There are children like Desiree who has appeared twice in the will, whereby Desiree will be given a Mercedes Benz and at the same time Desiree is among the children to be given the three vases. In the first place if the total debt that she had was 5,100,000 then Desiree could have not received all the properties because there is more money than was needed to pay back the debt that the mother had. In the second case if the total debt that the mother had was 4,500,000 then Desiree will be given all the properties as per the will that was written by the mother.

The body that is in charge of distributing the remains or the estate that the person who has died left behind is the statutory regime. It is the one that governs the distribution of the estate that the person who has died left behind. Part 3 and schedule 2 of the act gives the list of the interstate who are to be given the properties of the deceased person. The first people who should be considered in this case as per the act are the surviving children and the spouses that are remaining. 

Spouses.

When someone dies in the states like in the case of Alan died without living a will that could guide people on how to distribute the resources, their estate is distributed according to state or territorial law. A de facto spouse has the same inheritance rights as a married spouse under this legal framework. If the dead has no children, the de facto spouse will receive everything. If there are children, the de facto spouse will get a certain sum and the remainder of the estate will be divided among the children. The house that Alan left behind should be given to Gretchen because she is the one that they were living with Allan in the house until they died. The reason why the property should not be given to Trish is that Tris and Alan had already divorced and by the time when Alan was dying, he was living with Gretchen. They were inactive marriage and that is the reason why she comes first before even the rest in getting the resources. Gretchen should be given the house because she was in a de facto relationship with Alan. The house that Alan left that is worth 2 million dollars should go to Gretchen because she is the one who was in a de facto relationship with Alan until his time of death.

You do not have an automatic right to a share of your ex-spouse’s assets if you and your former spouse are divorced and your ex-spouse dies without leaving a will. In such cases, your ex-spouse’s assets will be divided between a person lawfully married to your ex-spouse, or a "person who was a party to a domestic partnership immediately before the death," as well as any children from a previous relationship if your ex-spouse had any. Tris will not be given anything because she had already divorced Alan a long time and they so many years have passed and they have not been a marriage. So, in this case, she might not be given anything.

If the two people that is Alan and Trish had children of which they did, the children are the ones who will be given the portion of the property. They have a right to be given a portion of the estate because that is their father’s property. In this case, Yasi and Veena can be given the properties first. Two, if their mother-in-law will be given the house where the two were living, they should be given the car and the boat together with all the furniture that is in the compound.  Domestic appliances and jewelry should be given to the grandchildren of Alan. After Alan’s children die, it is good that they should also be given a portion of the estates. All the children of Zeb, Xavier, William, and Craig should be given a portion of the estate because they are also representing their father even if they not there. Apart from the Jewelry, they should also be given some amount from the other assets. The settlement of family provision can be evaluated from an analysis of Vigolo v Bostin, (2005) HCA 11-221 case under which the court argued that family provision can be analzed through the use of a two-stage process which entails the need to determine relevant dispositions made and also the court should provide provisions on what should be made regarding the will settlement by providing guideline how the will can be shared amicably.

The people who will benefit from the estates are the family of Alan. The family of Alan will have to take full responsibility for the products because there no one else to be given the estates.

Mellissa and Daniel this is because Mellissa has been in a marriage with Abda until the time when he died.  So, it is good that Mellissa should file a claim over the property that has been given to the sons because was in a marriage in that marriage they had an agreement that Abda was going to take care of her. For Abdera, she has no problem because it is their sons who have been written in the will to inherit the property. This can be made in reference to Singer v Berghouse, (1994) 181CLR 201 and Herszlikowicz v Carney, (1989) Issue 23 cases which were filed in  the high court and Victoria Supreme Court respectively ruled that issues related to family legislation provision should be analyzed through determining on whether the applicant was left with adequate provision for life and education advancement and also what provision should be incorporated from the deceased estate to help in development of the child. Therefore, in regards to this case, Mellissa has a right to file a case in court for the minor to claim the property in question for sustainability of her son.

If Abdera's case will be given much attention in the court, there will be so many issues that this will result to. The first one is that if the case will be assessed it will greatly affect the two boys because the property will be shared equally and they may not be able to complain about it. The other effect that can be caused by the case of Abdera being assessed by the court is that size of the estate that the boys could have received could be reduced so that the three people can be incorporated in between and everyone will have to be given a smaller percentage. The will of the father was that all the property will go to the children but on the contrary, they have decided to challenge the will so that they can be able to get a portion of the property.

If Abdera goes to court and her case as it implies is that the same way, Mellissa will want to walk into the court to challenge the will also. If the magistrate will rule that the property be divided equally. This is because under the act, the court has an authority to alter or revoke a will as specified under SS4(18) of the succession act.  It will be a disadvantage to Abdera because her sons will be given a small amount that may not be equal to the one she will be given. she could have decided to keep quiet so that her sons can get more of them. Based on the provisions on D3(13) the will can be revoked through a declaration to alter the will made in court.

The allegations against Abdas should not be allowed to pass because they can cost the whole estate that Abbas left for his twins. If the people who brought the accusations will know that Abdas had estates before he died, it will make them ask for the estates to be sold so that they can be paid their money.

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