Who Will Inherit Your Property?

I’m writing this letter consiquent to our meeting of 29-12-09 wherein you made the following requirements.You wanted to know who will inherit your property if you die without a valid will while still married to Romeo. Who will inherit your property if you die without a valid will after divorcing Romeo and the matrimonial home has been transferred into your sole name and your flat transferred to Romeo’s name and lastly if anyone else may be able to make a claim against your estate if you die without making a valid will?

My advice to you at our meeting is as follows.

A person who died without a valid will or if the will did not share a particular property has died intestate in such a case the rule of intestacy will be invoked in sharing the estate among the relatives, the surviving spouse is first on the list

Romeo will therefore has the right to inherit your estateafter your personal representative had paid all the funeral cost, testamentary and administration cost, debts and any other liabilities. Romeo must survive you for 28 days from the date of death before taking an interest, Romeo will take absolutely your personal chattels which are the things of personal use to you which in this case is your jewellery and.The matrimonial home will pass to Romeo as a surviving spouse by the rule of survivorship this is outside the rules of intestacy; he will take the matrimonial home being a beneficial joint tenant. Your flat will be held in trust for Romeo by your personal representative from whom Romeo will be entitled to a statutory legacy of £250,000 free of tax and costs together with interest at 6% per annum from death until payment.Since the market value of your flat at present is £105,000 the flat, any acruing rent plus interest will pass to Romeo free of tax because this is below the statutory inheritance tax threshold of net value of £325,000. If the value is above £250,000 at the time of sale the residue after the statutory legacy of £250,000 will be shared between Romeo and Colin with Romeo receiving a life interest in half of the residue and the remaining have will be held in trust for Colin until he his 18yrs or if married earlier and the half of the residue with Romeo will return to Colin after the death of Romeo.

I will also like to advise you that your 17years old child given for adoption will not be able to make a claim on your estate, in law the child belong to the adopted parents.

After divorcing Romeo and the matrimonial home had been transfered to your name and the flat transfered to Romeo. Romeo takes the flat absolutely and have no claim on your jewellery and the matrimonial home. The residuary of your estate after your personal representatives have paid the funeral cost, debts or any other liabilities will be held in statutory trust by your personal representatives for Colin untill he is 18yrs or marry under the age. Your personal representatives which must be at least two because of Colins age will be in a fiduciary position in administering the estate for the benefit of Colin and must not profit from it, they may choose to instruct solicitors to act for them in obtaining from the court the grant of representation or to administer the state. They would have the power to sell the jewellry and pay your debts, funeral cost and invest any money left for the benefit of Colin they also has duty to account when called upon. If Colin dies before 18yrs and he is not married or involved in a civil partnership the estate will be shared as if he had never existed therefore your parents will take equally if there are no parents the next in line will be your brothers or sisters of the whole blood they will take equally and if they died before you it will go to their issues equally if they are 18yrs or marry under the age otherwise it will be held in statutory trust for them. If there are no close relatives as above the estate will pass to your brothers or sisters of the half blood in equal shares or to their issues if they die before you if none of these is available it will pass to your grandparents. If no relatives as stated above is found your estate will pass to your uncles or aunts of whole blood of one of your parent, in case none is found it will pass to uncles or aunts of a half blood of one of your parent. Where there is more than one person that is entitled to the share it shall be shared among them equally or to their issues if such died before you.

Regarding those who may be able to make a claim against your estate, there are potentially six categories of your relatives and dependants who can make a claim on your estate, anyone of these people will have to apply to the court on the ground that the rule of intestacy did not make a reasonable financial provision for them however, not all of them will succeed in their claims. Those who are qualified to apply are your husband if the marriage continues at the time of your death. If Romeo though divorced remains unmarried at the time of your death he may make a claim on your estate. Colin may make a claim on your estate as your child and being a minor he might have a very good chance of succeeding as the court will take into consideration his needs and circumstances especially his educational needs or training. However your daughter given for adoption may not be able to bring a claim against your estate as mentioned above though you are the biological mother such a claim if there is any is unlikely to succeed as she is treated as the child of her adopted parents.Baby allegedly born to Romeo may not be able to make a successful claim against your estate though he might be your step son as he has not been treated as a child of the family and Romeo has denied the affair with Harilot. Any person who lived with you for a period of at least two years immediately before your death as your husband though not married to him may bring a claim on your estate. Any person who has depended on you financialy or other form of provision immediately before your death may bring a claim against your estate.

In making any award to any of the applicant the court will be more generous to Romeo as the surviving spouse if your marriage continues till your death by awarding to him reasonable financial provision considering all circumstances and making award which will provide them decent and comfortable living. If the court found that the intestacy rules as applied did not make adequate provision for any of the applicants the court will apply common guidelines.The court will take into consideration available financial resources, needs of the applicant and other applicant and beneficiary, previous obligations and responsibilities of the intestate towards the applicant or any beneficiary, the size and what the estate is, any disability either mental or physical of any applicant or any beneficiary and any other matter including behaviour of the applicant or any person the court may consider relevant. The court could also in relation to a spouse or former spouse use particular guidelines such as age and duration of the marriage and what contribution made by such applicant to the welfare of the family of the intestate, including keeping the home in good condition or caring for the family.

In view of the likely problems that may arise if you die without a will it will be better to make one since your entire property may pass to Romeo if you die before the decree absolute is issued, furthermore you will have the opportunity to disribute your property as you wished either through gifts or legacies.

I will await further instruction on this and should you have any questions regarding the contents of this letter do call me on 02012345678 ext. 934

Yours sincerely

Brian Jacobson (Solicitor)

Bibliography

Statutes

1. Administration of Estates Act 1925

2. The Law Reform (Succession) Act 1995

3. Law of Property Act 1925

4. Adoption Act 1976

5. The Matrimonial Causes Act 1973

6. Inheritance (Provision for families and dependants) Act 1975

Cases

7. Re Skeats [1936] Ch 683

8. Re Crispin’s Will Trusts (1975)

9. Re Collins (1975)

10. Hocking and Hocking v Hocking [1997] EWCA Civ 1659

11. Re Callaghan (1984) Fam 1

12. Gully v Dix [2004] 1 FCR 453

13. Myers v Myers [2004] EWHC1944; [2005] WTLR 851

Books

13. Module Guide Law in Action School of Law, University Of East London Semester A 2009/10

14. Reading Materials Law in ActionSchool of Law, University Of East London Semester A 2009/10

Question: 2

The Peach boys as Unlimited partnership are governed by Partnership Act 1890. Section 1 (1) of Partnership Act 1890 defines “partnership as a relation which subsists between two or more persons carrying on a business in common with a view to make profit”.s. 5 of the Partnership Act recognises that every partner is an agent of the firm and his other partners any act of a partner in the usual way of the kind of business of the firm could bind other partners. Imran could be liable, firstly if he had not given adequate notice of his retirement from the firm or if he had acted as a partner to the supplier after his retirement. Under s. 36 of Partnership Act 1890 the retiring partner is expected to give adequate notice to the people who had had dealings with the firm and to ensure his name is taken off the firm’s notepaper and other stationaries used for business transactions. For the purpose of s.36 adequacy of notice to creditors, creditors are classified into 3 categories which are creditors who have previously dealt with the firm, creditors who have no previous dealings with the firm but who knew or believed Imran to be a partner and creditors who have not had previous dealings with the firm and do not know Imran was ever a partner.

If the supplier have had previous dealings with the firm and knew Imran to be a partner, he may not be liable if the supplier had received actual notice of his retirement from him or the firm which could be in form of a letter where Imran’s name had been deleted from the partners list or by seen the notice of his retirement in the London Gazette if the principal place of bussiness of the firm is in England or Wales, but for this to be effective the supplier must have read it. If the supplier had not have any previous dealings with the firm but knew or believed Imran to be a partner. Imran will not be liable if they have actual knowledge of his retirement or the notice of retirement was published in the London gazette if the principal place of business is in England or Wales it will be immaterial whether they had not seen it or read it. Imran will be free from liability if the supplier had no previous dealings with the firm and do not know that he was ever a partner. Tower Cabinet Co Ltd v Ingram. Mr Ingram was not liable though no notice of his retirement was put in the Gazette as Tower Cabinet did not know or helieve him to be a partner prior to his retirement.

Imran could be liable under s.14 of the Partnership Act 1890 if he had held himself or presented himself to the supplier as a partner in The Peach Boys firm, this could happen through his conduct, spoken or written words but will not be liable if the representation is made by a third party In Tower Cabinet v Ingram it was held that Ingram was not liable under s.14 because he had not knowlingly allowed himself to be represented as a partner but could have been liable if he had known that Mr Christmas had used the notepad.

Under s.25 of the Partnership Act 1890 Brian, Dennis, Carl and Al will be unable to remove Mike if there is no written partnership agreement that says so. However, they may apply to the Court for judicial dissolution of the partnership under s. 35 (3) and (5).It could be argued that Mike’s criminal conviction may negatively affect the relationship between the firm, its suppliers and customers as a result of loss of confidence in the integrity of the partners running the firm, this may affect the firm’s ability to obtain credit for stock. The court may consider Mike’s conviction for driving under the influence of alcohol as conduct prejudicial to the carrying on of the bussiness. In other not to enburden the other partners the Court under s.35 (5) of Partnership Act 1890 may find it just and equitable to dissolve the partnership and the remaining partners may start a fresh parnership should they wish to continue.

Partners owe to each other fiduciary duties to deal transparently with each other. s.5 of the Partnership Act states that a partner represents the firm and other partners if the business is related to the kind of business of the firm of which he is a partner. Under s. 29 (1) of the Partnership Act 1890 partners owe it a duty to account for profits for any business transaction concerning the partnership or the use of the partnership property, name or business connection without the consent of other partners .s.30 of the Partnership Act 1890 also confirm that if any partner engages in competition with the firm of which he’s a partner without the consent of the other partners the profits from such business must be handed over to the firm of which he is a partner. Reading sections 29 and 30 together it is obvious that Carl as a designated buyer for the company had used the firm’s business connection and engaged in competition with The Peach Boys as a firm without the consent of other partners the Court may order that the profit from the business be paid to the firm’s account. In Bentley v Craven held that the firm was entitled to the profit made by Mr Craven. Carl may be able to keep the profits both under sections 29 (1) and 30 of the Partnership Act 1890 if the business was conducted with the consent of other partners or if there is a written partnership agreement that permits him to do so.

Where there is no written partnership agreement section 24 of the Partnership Act 1890 will be implied, this is known as default provisions and it covers the following areas, capital and profits, indemnity, interest on capital and advances, management, renumeration, admiting a new partner, disputes about ordinary matters and partnership books. This default provisions will be implied except where there is express written agreement to the contrary.Without a written aggrement might not be able to understand what their rights, obligations, duties and liabilities are except as prescribed by the law , it may be difficult to remove a problematic partner by simple majority votes without recourse to the court.

Bibliography

Statutes

1. Partnership Act 1890

2. Limited Liability Partnership Act 2000

Cases

1. Mann v Darcy and others (1890)

2. Tower Cabinet Co Ltd v Ingram (1949)

3. Essell v. Hayward (1860)

4. Bentley v Craven (1853)

Books

4. Keena, D. and Riches, S. (2009) Business Law 9th edition 2009

5. Module Guide Law in Action, School of Law, University Of East London Semester A 2009/10

6. Reading Materials Part 2 Business Law in Action, School of Law University Of East London Semester A 2009/1