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Frank August's Last Will and Testament

Discuss about The Law Of Succession In New South Wales.

This is the last will and testament of Frank August, presently residing at 6/54 king Street, Fishery harbor in the state of New South Wales.

He declares that he knows and can read this testament. [1]It states its purpose of granting an open will, for which it has, in my opinion, legal capacity, and to this end it expresses its last will in the following manner:

  1. He declares that when he was 21, he married Georgette Perrone. After two years of marriage, they separated but the couple has never divorced. According to Frank, he has not seen or contacted Georgette for the last 40 years, although she is alive, in good health and lives in New York. The couple did not have any children.
  2. In the presence of two witnesses, (niece Carly and her partner), Frank has declared that this is the most recent and operative will. [2]He has declared that from now he has revoked all his previous testaments, and therefore this eliminates any previously written testament.

Frank has declared that he owns all the assets below.

  • Frank August has a home unit at Fishery Harbour which is valued at $400,000.
  • Together with his brother Jeffery, they own an unencumbered commercial building located at commercial Road, Mosman NSW. The property is worth $3million.
  • Frank has an investment unit at Bay Street, Byron Bay, NSW, which has no financial liability and is valued at $2.5 million.
  • He owns four cars worth $ 100,000 each; the model type is Mercedes Benz.
  • Included in his assets, is a superannuation policy which has a value of $650,000 which is the death benefit value. Frank has declared that the superannuation has a binding nomination in favor of Carly his niece.
  • He as 10,000 shares worth $750,000 from the common wealth bank of Australia.
  • He has cash in a savings bank account totaling $24,750.
  • Furniture and other personal effects are worth $32,000. 

The testator has appointed Jeffery (his brother) and Carly (his niece) to be the executors of the will. They will be responsible for managing Frank’s wishes.

Frank has requested and directed that upon the payment of all personal debts, liabilities and .expenses, his property be bequeathed as follows:

  • The four vintage Mercedes Benz cars should be given to Antonio, Robert, Peter and Alexandra (Frank’s nephews and nieces) as gifts.
  •  A superannuation policy which has a value of $650,000 which is the death benefit value will be taken up by Carly. Frank has declared that the superannuation has a binding nomination in favor of Carly his niece.
  • Frank has bequeathed his 10,000 Commonwealth Bank Shares as a gift to Carly (his niece).
  • Frank has requested that his home unit located at Fishery Harbour, his share in the Mosman commercial property and his investment unit at Byron Bay to be given to Carly.
  • As to the rest of his estate, he would like it to be sold and a conversion into cash will be made then shared equally to his great nieces and nephews who survive him and attain the majority age. If a great niece or nephew dies before reaching 18 years of age, his or her share is to be shared equally to the other surviving great nieces and nephews. [4]Until they reach 18 years, the share of the monies will be held in trust by the appointed executors.
  • Frank has also made a bequest of $10,000 to the Big Scrub Rainforest centre.

Frank has requested that upon his death, he wants his body cremated and the ashes spread in the waters off Fishery Harbour.

In accordance with the provisions of succesion Law, the appearing party is informed and accepts the incorporation of their data to the automated files, existing in the Notary and authorizes the sending of a copy of the will and testament to Josephe, Steph & Co legal firm. This in turn will keep the copy on its servers, which will be kept confidential, without prejudice to the obligatory referrals.

To this testament, prior waiver of I warn you to read it for yourself, and be aware of its content. approval of the grantor who states that it is in accordance with his will and signs it with me. A unit of this act will be used if all the legal formalities have been observed. Through the use of his reviewed National Identity Document, which he has shown me, the document is extended.

 I hereby subscribe my name to this last name and testament, in the date and address set below, in front of attesting witness who subscribes their names to this will and testament as of the same date at my request and in my company.

Name

Address

Signature

Date

WITNESS ATTESTATION:

We declare that the testator expressed his true and sincerest wishes and will and testament in our presence.

Witness 1

Name

Address

Date

Signature

Witness 2

Name

Address

Date

Signature

Witness 3

Name

Address

Date

Signature

Accompanying Letter to the will

Josephe, Steph& Co

29th street Melbourne

Tel; +61 43675 3567

List of Assets

To;

Frank August

6/54 King Street, FisheryHarbour,

New South Wales

Dear Sir

Re: Issues/Implications that may arise due to testamentary wishes

The following is a letter of advice due to the preparation of the will that will be executed upon the request that you have placed which is upon your death.[7]The decree of distribution can be done by a court of law while distributing a probate estate.

 The order in which the execution is done is dependent on how close the blood relationship with the estate holder is. The closeness to estate owner and the will determines how the estate is distributed. In this case, a will is made to ensure that the executors adhere to the will of the estate holder. Frank August has a sizeable asset portfolio to be distributed according to his will by the executors who will also create a trust to hold assets handed to his great nephews and nieces.

The executors are to be his brother Jeffery and his niece Carly.The legal duty is understood as the need that a person has to voluntarily observe a conduct according to what prescribes a rule of law. Thus, legal norms impose duties, and when recognizing the faculty that is placed in the hands of another to constrain the fulfillment of a determined duty, which would otherwise be a voluntary behavior and where the obligation originated.

Franks Assets

The assets comprise the following:

  • His unencumbered home unit at Fishery Harbour, valued at $400,000.
  • An unencumbered commercial building at Commercial Road, Mosman NSW that he owns as joint tenants with his brother Jeffery. The property is worth $3 million.
  • An unencumbered investment unit at Bay Street, Byron Bay, NSW, now valued at $2.5 million.
  • A superannuation policy with a total death benefit value of $650,000. Frank informs you that the superannuation has a binding nomination in favor of his niece Carly.
  • Four vintage Mercedes Benz cars worth $100,000 each.
  • 10,000 Commonwealth Bank of Australia shares worth $750,000.
  • Cash in a savings bank account totaling $24,750.
  • Personal effects and furniture worth $32,000. 

Now, under this distinction, the obligation consists of the bond (or coercive power) that exists so that a creditor can demand from a debtor a provision of patrimonial content.[8] On the other hand, the legal duty can dispense with both the bond and the creditor, because it can be imposed only on the one who is constrained to perform the behavior.

However, it should be noted that it is not possible to perform a provision to the void, without more content than simple compliance, because in such a case, and even if it will only benefit the person doing it, it would not be of any interest to the legal system.

[9]Thus, in any case it is possible to relate the subject that performs the conduct with someone who benefits from it and that from the issuance of the unilateral declaration of the will is entitled to demand compliance with that benefit, so the behavior ceases to be voluntary a priori:

Also in the will can establish a link between debtor and creditor in spite of the fact that at the time of the enforceability of the benefit the debtor has died, the fulfillment is in charge of his assets, which can validly answer for the benefits indicated in accordance with article 2964 and the law provides that it is in charge of the successors (executors and heirs), said compliance.

Executors Appointment

In any case, on the determination of the person of the heirs and the objects with which it can be answered corresponds to the rules of the successions.

If it was an obligation to do according to the special characteristics of the testator, that provision would be null and void as it is impossible to contravene the nature of the testamentary disposition.

[10]Regarding the stipulation in favor of third party in which the creditor (third party) and the debtor (promisor), the quality of the debtor and the benefit due can be deducted from the stipulation itself has the disadvantage article provides that if the third party refuses the benefit, your right is considered unborn.

To this extent, if the third party becomes part of the contract, only doing so by refusing to do so, because its consent is required for the birth of its right, and in such a situation it would not be a unilateral declaration of the will but a contract.

[11]On the other hand, those who from the doctrine maintain that this right is born as a unilateral declaration of will, and that it changes with the acceptance to be part of a contract. it must be said that the law does not recognize the change of the nature of the same legal relationship, but the forecast of a condition on the birth of the third party's right. 

Therefore, it can be validly said that the stipulation in favor of a third party is not a unilateral declaration of will, but a way to reach a contract; therefore, it is a source of obligations.

However, the birth of the right of the third party depends not on the stipulation and acceptance between the stipulate and the promisor, but also on the non-rejection of the beneficiary.[12] This means that the will of the beneficiary is compelled to perfect the birth of his right. In that sense, it is understood that frank deduce that a legal duty of expectation is generated on the birth of an obligation, and in respect of which the promisor acquires the commitment not to revoke it. This will consist in the effect of your unilateral declaration of will, in not revoking the benefit that is expected from him, in issuing a non-perfected offer with respect to a determined third party-

The wife will not be considered in the estate since she has been away for close to 40 years.  Although frank is not legally divorced, his wife may reappear and claim that frank is her husband and therefore should be a beneficiary to the will. The legal implication in this is that she has not been with frank and therefore effectively unable to inherit anything although legally she is still the wife.

Bequests and Requests

A trust will be created for holding the assets of franks great nephews and nieces who have not yet attained the stipulated age of 18 to inherit.[13] They will be eligible after attaining that age, however, if any of them does not make it to this age, and then his or her assets will be distributed equally amongst the remaining.

Writing and signing of the cover: Once the foregoing has been done, the testator must present the envelope before the notary and witnesses, declaring it out loud and in a way that everyone sees, hears and understands that this envelope contains his will.

Finally, the legend "Testament" must be stamped on it, and then the notary must identify the testator and the witnesses by their name, surname and address, certify that the testator was apparently in his right mind, and indicate the place, day, month, year and time of the grant.

The act of granting ends with the signature of the title page by the testator, witnesses and notary or judge of letters, as the case may be. This third and final stage of the granting of the closed will must be done in a single act, in which the same witnesses and the notary will be present, and which does not admit interruption. As it happens with respect to the signature of the testator in the document itself, there have been various decisions regarding whether the testator's failure to sign the title page entails the nullity of the testament.

The testator can take his will, or leave it in the notary's office. In any event, the Organic Code of Courts requires notaries to keep a Book of Closed Wills that are granted before them, which is kept secret and can only be exhibited after a judicial resolution.[14] The closed character of the will is often chosen precisely so that no one knows its contents and we know that if a closed will is opened during the deceased's life or if it is opened after his death, without prior judicial proceedings, it loses all its value.

Yours faithfully,

Jones

References

Bacon, Charlotte, Split Estate (Farrar, Straus and Giroux, 2008)

Barker, David, Essential Australian Law(Routledge/Cavendish, 2007)

Certoma, G. L, The Law Of Succession In New South Wales (Thomson Reuters (Professional) Australia Pty Limited, 2010)

Garsia, Marlene, How To Write Your Will (Kogan Page, 2011)

Godsk Pedersen, Hans Viggo and Ingrid Lund-Andersen, Family And Succession Law In Denmark(DJØF Publishing, 2016)

Haag, Kajsa, Rethinking Family Business Sucession (Jo?nko?ping International Business School, 2012)

Haines, David M, Succession Law In South Australia (LexisNexis Butterworths, 2003)

HARVEY, CALLIE, FOUNDATIONS OF AUSTRALIAN LAW (TILDE UNIV PR, 2017)

LOVELASS, PETER, LAW's DISPOSAL OF A PERSON's ESTATE WHO DIES WITHOUT WILL OR TESTAMENT (FORGOTTEN BOOKS, 2016)

Mann, Trischa, Australian Law Dictionary

Moncreiffe of that Ilk, Iain and Jackson W Armstrong, The Law Of Succession (John Donald, with assistance from St. Andrews Fund for Scots Heraldry, 2010)

Platt, Harvey J, Your Will & Estate Plan (Allworth Press, 2003)

Theobald, H. S and John G Ross Martyn, Theobald On Wills (Sweet & Maxwell/Thomson Reuters, 2010)

Tiffany, Grace, Will (Berkley Books, 2004)

[1]  H. S Theobald and John G Ross Martyn, Theobald On Wills (Sweet & Maxwell/Thomson Reuters, 2010).

[2] Hans Viggo Godsk Pedersen and Ingrid Lund-Andersen, Family And Succession Law In Denmark(DJØF Publishing, 2016).

[3] Iain Moncreiffe of that Ilk and Jackson W Armstrong, The Law Of Succession (John Donald, with assistance from St. Andrews Fund for Scots Heraldry, 2010).

[4] Kajsa Haag, Rethinking Family Business Sucession (Jo?nko?ping International Business School, 2012).

[5]  David M Haines, Succession Law In South Australia (LexisNexis Butterworths, 2003).

[6] G. L Certoma, The Law Of Succession In New South Wales (Thomson Reuters (Professional) Australia Pty Limited, 2010).

[7] CALLIE HARVEY, FOUNDATIONS OF AUSTRALIAN LAW (TILDE UNIV PR, 2017).

[8] David Barker, Essential Australian Law (Routledge/Cavendish, 2007).

[9] Trischa Mann, Australian Law Dictionary.

[10] Marlene Garsia, How To Write Your Will (Kogan Page, 2011).

[11] PETER LOVELASS, LAW's DISPOSAL OF A PERSON's ESTATE WHO DIES WITHOUT WILL IR TESTAMENT(FORGOTTEN BOOKS, 2016).

[12] Iain Moncreiffe of that Ilk and Jackson W Armstrong, The Law Of Succession (John Donald, with assistance from St. Andrews Fund for Scots Heraldry, 2010).

[13] Charlotte Bacon, Split Estate (Farrar, Straus and Giroux, 2008).

[14] Harvey J Platt, Your Will & Estate Plan (Allworth Press, 2003).

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