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Signatures on a Will

Re: Signatures on a Will

Postby dls » Mon Dec 28, 2015 9:47 am

No particular formality is required, and nothing like the same formalities are required as in making a will.

Why is it not simply a request to the executor to pay a share under te will to somebody else - an assignment of a future debt?
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Re: Signatures on a Will

Postby theycantdothat » Fri Jan 01, 2016 2:41 pm

I agree the OP needs to consult a lawyer.

There are several points to be considered.

The first is whether you can in fact have an assignment of what is no more than a spes, that is the hope or expectation of receiving property. The hope of receiving a benefit under a will has no sound basis and can be upset in any number of ways such as the testator changing the will or dying with a nil or insolvent estate. Whilst I can find nothing online to confirm it, I am more than moderately convinced that an assignment of an expectation is void at common law, even if made by deed. To be enforceable in equity some valuable (i.e. more than nominal) consideration would I think need to be given in a situation free from coercion or deception.

The second, assuming an assignment is possible, is whether it was made in the correct form. Absent any consideration and as Atticus suggests, a deed would be needed.

The third, assuming an assignment is possible and appears on the face of it to be enforceable, is whether non est factum can be pleaded. The plea will succeed if it is shown that the document was signed with the signatory thinking they were signing something quite different.

The fourth is that any instrument giving a benefit and prepared and/or witnessed by the beneficiary's lawyer spouse pretty much has "CAN BE SET ASIDE" written all over it.
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Re: Signatures on a Will

Postby Millbrook2 » Fri Jan 01, 2016 8:57 pm

theycantdothat wrote:I agree the OP needs to consult a lawyer.

There are several points to be considered.

The first is whether you can in fact have an assignment of what is no more than a spes, that is the hope or expectation of receiving property. The hope of receiving a benefit under a will has no sound basis and can be upset in any number of ways such as the testator changing the will or dying with a nil or insolvent estate. Whilst I can find nothing online to confirm it, I am more than moderately convinced that an assignment of an expectation is void at common law, even if made by deed. To be enforceable in equity some valuable (i.e. more than nominal) consideration would I think need to be given in a situation free from coercion or deception.

The second, assuming an assignment is possible, is whether it was made in the correct form. Absent any consideration and as Atticus suggests, a deed would be needed.

The third, assuming an assignment is possible and appears on the face of it to be enforceable, is whether non est factum can be pleaded. The plea will succeed if it is shown that the document was signed with the signatory thinking they were signing something quite different.

The fourth is that any instrument giving a benefit and prepared and/or witnessed by the beneficiary's lawyer spouse pretty much has "CAN BE SET ASIDE" written all over it.


It's content like this that, as a non lawyer, I frequent the board for - albeit hovering in the background. Thank you.
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Re: Signatures on a Will

Postby Albert » Sat Jan 02, 2016 11:42 am

Thank you all who have contributed to the thread. This forum is an excellent collective.

Few situations exist where there is a simple question followed by a simple answer and so it is good to see various opinions offered. The last time I asked a question (it was regarding precedent law) the forum was kind enough to stay with me in my ignorance, when I asked further questions, which in the end provided me with an understanding of a legal principle.

This particular case is interesting and I have only provided a bare essence. There is more to this than the misappropriation of a person's estate. It involves a neighbour whose life has been turned upside down since discovering they had - so they have been told - signed away an inheritance. It may be some time, but I will provide a feedback.
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