Equity Trusts and Succession 2 – 2002 Examination

Page 1 of 3 pages

PART A IS COMPULSORY

PART A

Question 1

(a) In August 1994 Sailasa wrote out and signed a document. The document said : "I leave all my money to my daughter Mariana." One person, Eduardo, saw Sailasa sign the document and he signed it also. The next day Sailasa and Eduardo went to see Mariana. Sailasa said : "Look I have signed this and so has Eduardo. You had better witness it too". Mariana then signed it.

(b) In May 1998 Sailasa wrote out another document saying : "I make this change to my will. I appoint my friend Saini executor and give everything to her as my intended wife, except for the money which goes to Mariana as previously." This document was not signed by Sailasa. However he put the will in an envelope and sealed it. He and two witnesses wrote their names and addresses on the envelope but using different pens.

(c) In December 1998 Sailasa married Saini with whom he had been living for three years in a de facto relationship.

(d) In October 2000 Sailasa was told by his doctor that he had terminal cancer and would die within 2 months. He spoke to Mariana shortly afterwards saying "I am finished. I want you to have this when I go." He gave her the key to a bank safe deposit box. The bank would not allow Mariana to open the box without a further authority signed by Sailasa. Once she asked Sailasa for the authority but he refused to give it to her. It was opened after Sailasa's death in the presence of Mariana, Saini and their lawyers. It contained three bank statements relating to cheque accounts still in credit, two share certificates and a key to Sailasa's motor launch.

(e) Sailasa died when he was run over by a car outside his home in January 2001.

Saini consults you for advice as to her legal claims to Sailasa's property as a result of his death. Sailasa had no children apart from Mariana. At the date of death Sailasa and Saini were still married and living together. Mariana was 28 years of age at the time of death.

You may answer with reference to the law of any USP country. Do not base your answer on the Family Provision legislation.

Equity Trusts and Succession 2 – 2002 Examination

Page 2 of 3 pages

PART B – ANSWER ANY THREE QUESTIONS FROM THIS PART, BUT THREE ONLY.

Question 2

A person who is insane can still make a valid will. Discuss the requirements of testamentary capacity in light of this proposition.

Question 3

Jimmy’s will was properly executed in 1998. In 1999 he had an argument with the beneficiaries under the will. He took a bottle of acid and poured it on the will. The acid obscured half of the words in the will, in particular the clause appointing his son Ben executor and a clause giving his motor car to his daughter Jenny. The rest of the document which left the residue of his estate to his wife Maria was still legible. Jimmy died in 2000. The will still remained in his possession. Using scientific analysis it is still possible to read the words affected by the acid.

Give a legal advice on whether the will was validly revoked.

Question 4 - ANSWER PARTA OR PART B

A. Leaving aside privileged wills, the will of a testator has to be taken to be the legal effect of the words used in the document. Explain what this means in the context of legal approaches to the construction of wills.

OR

B. Family provision legislation in the Pacific is out of date and ought to be revised. Discuss the nature of current family provision legislation and examine whether it is in need of revision.

Question 5

Beta’s will was signed in hospital when she was revering from major surgery. She was 80 years old. She was weak although capable of understanding what was going on. She was infatuated with one of the nurses in the hospital, Belinda. At Beta’s request Belinda arranged for her own lawyer to come to the hospital to make Beta’s will. This was done. Belinda was the sole executor and beneficiary.

Beta died in 2001 about two weeks after the will was made. Beta’s son Jimione wants to challenge the will. On what basis can he best do that.

Equity Trusts and Succession 2 – 2002 Examination

Page 3 of 3 pages

Question 6

A demonstrative legacy is a kind of general legacy which does not attract the operation of the ademption rule. Explain this principle giving factual examples which illustrate its operation.

Question 7 - ANSWER BOTH A and B

A. It is for the executor(s) alone to arrange the burial of the deceased. There is no property in a dead body. Explain this principle

AND

B. A legal personal representative who is ready to distribute the property of the deceased to beneficiaries has a duty to ensure that all claims have been satisfied and that the property goes to those who are legally entitled. What procedures should a legal personal representative follow in order to protect himself or herself in the case of a distribution?