Distribution of Residuary Estate

Discuss about the Intestate Succession Act for Business Law.

A residuary clause is a clause that bequeaths property that is left by the deceased. The clause is contained in a will and will only be present in a will after all the property has been bequeathed to the rightful beneficiaries in the will and what is remaining is not expressly disposed by the given will, is what is provided for in the clause. The property that is being bequeathed in a residuary clause is commonly referred to as the residuary estate.

The deceased, Mr. Alvin, has passed on but has not left any surviving spouse and therefore rule 2 of section 7 Intestate Succession Act( 1967) will not apply. However, it is interest to note that there are two surviving god children that have been left and therefore Rule 3 of the act will apply here where the estate of the deceases that is not distributed in this sense will be divided in equal measure between the children and the any other legal representatives of the children. The wording of section 7 rule 3 has clearly defined the legal representatives of the children as their descendants and disregarded any next of kins. It should also be noted that the god children  though are not the biological children of the deceased, they have been coverd by law as children of the deceased within the definition of section 3 of the  Intestate Succession Act ( 1967).

The legal represeantives that have been referred to in this case include Elvin Tan, Jim Tan and David Tan who will also have an equal share in the residual property of the deceased. However it has been noted in the facts of the case that Elvin has passed away and has been left with a surviving spouse and two children Fin and Han. In this case Rule 2 section 7 of the Intestate Succession Act will apply and the wife to Elvin will be entitled to half of the residual share that was to be given to Elvin by virtue of Rule 3 of the Act and the other half will be to the children.

It is of particular significance to note that Han and Fin are minors since Han is five years old and Fin is seven years old. As rule three has noted, the children will be represented by their immediate legal representative who in this case will be the mother of the children. Jim tan and David Tan are the only surviving siblings and relative of Alvin. As has been noted above Jim and tan will be entitled to the residuary estate but they will each take an equal potion. Essentially, the residual estate will be divided amongst four people. The two god children that have been left by the deceased and the 3 siblings left by Alvin however the share that is to go to the deceased siblings will be given to the family according to the rules explained above.

Types of Legacies in Clause 2 and 3

The type legacies have been expansively discussed in the case of Celantano Estate v Ross (2014) and the rules that have been established will be applied in the discussion hereunder.

Clause 2

The type of legacy that is in clause to can be described as a demonstrative legacy as it will evidenced below. A demonstrative legacy has been said to contain both of the e elements of a general legacy and a specific legacy. In other words it is regarded as a specific legacy because its wording specifies the exact or rather the specific amount or item that is to be given to a certain specific individual mentioned by the deceased. However what makes it partly a general legacy is the fact that the specified amount of money can be fetched from the general residual amount that has been left by the deceased. A demonstrative legacy has been demonstrated in the case of Wood Estate v. Arlotti-Wood (2004) in paragraph 12 of woods state where the clause stated that ‘’I give [pounds] 100 to be raised out of the sale of my Surrey properties.’’ In this case the clause 2, since it is specific as to the amount which is $5000 it can be argued that it is a demonstrative legacy. The clause will also be able to take effect because the sum of money may come from any of the part of the deceased estate.

A specific legacy is that is specifically mentions in the will from which part of the estate the money or any other item will be found from (Halsbury’s Laws of England 1998). The legacy in clause three which was to Simon Temper the godson of the deceased can been said to be a specific legacy because the amount of money that was bequeathed was specified form a certain specific part of the deceased estate which is OCBC Bank account number 485772. It can be distinguished from the above demonstrative legacy by the fact that in the demonstrative legacy there has been no specific mention of which bank account or part of the estate of the deceased the money to be given to his friends will come from. The only identifiable bank account in this case is DBS Bank Account. Because of instances such as this the courts have always shied away from ruling that a certain clause ifs specific unless the clause is obviously one and has been expressly sated in the will in clear words that it is specific as was noted in the case of Smith Estate (Re) (2003). The courts have also decided in Re Culbertson that the literal and ordinary meaning should be construed out of the wording in the clause to determine which type of legacy the clause could be implying. When clause 3 is interpreted in its literal meaning it can obviously be discerned that it is a specific legacy. It can be observed from the facts of the case that Late Mr. Ivan had no any bank account with OCBC bank account and therefore the legacy will not be able to take effect.

Grant of Letters of Administration with Will Annexed

3. A grant of letters of administration with will annexed (cum testament annexed ) is usually given where the executor of the property of the deceased is not there to administer the property of the deceased .The executor may not be present because they also died after the will was made. In addition the grant of the letter of administration with will annexed is normally made where the deceased died testate and there was a valid will and but there is also a residual property of the deceased that has not been distrusted in the will. In essence the deceased is held to have died partly testate and partly intestate that is why the will is attached to the letter grant of administration. Normally when a person dies testate having left a will behind the type of grant of representation that will be made will be the grant of probate.

In our case in point it can be observed that the people who were appointed as executors of the will in this case have died. Additionally, it has also been noted that the estate of Late Mr. Alvin has not been entirely bequeathed as there is a residual estate that has been. It thus follows that the appropriate grant of representation in this case will be the grant of letters of administration with will annexed.

Since all the executor have died in this case the rule that explicates who will be able to apply for the grant will be applicable pursuant to Probate and Administration Act(Chapter 251). The acts in section 13 gives the order of priority on who will be able to apply for the grant of letter of administration with the will annexed. According the order given is section 13 the residuary legatee of any universal legatee that has ben provided for in the will is entitled to apply for the grant of the letters of administration with the will annexed. In this case the goddaughter of the deceased is a residual legatee being a legal child of the deceased and having been provided in rule 3 of section 7 Intestate Succession Act ( 1967), she can apply for the letters of administration if she attains the age of 18. Additionally, the two brothers that have been left by the deceased who are the biological brothers are also within the definition of residual legatees as provided fro in the aforementioned section, and they may also apply fro the letters of administration with the will annexed. The application for the grant must specify that the applicants are of the requisite mental capacity within the definition of Mental Capacity Act (Cap. 177) (Subordinate Courts of the Republic of Singapore Practice Directions Amendment No. 1 of 2012).

It should also be borne in mind that by dint of section 55(1) of the Probate Act the where no application for the grant has been made within 6 months the letters of administration with the will annexed may be granted to the public trustee by the court (Chiang Shirley v Chiang Dong Pheng 2015).

4. The god daughter in this case has been bequeathed $5000 provided that she reaches 18 years old. It can be noticed that there is a specified amount of money that has been awarded in this case although the specific source of the money from the estate of the deceased has not been specified. By applying the ruling that was govern in the case of Re Culbertson (1967) that the wording of a clause should be given an ordinary plain meaning. It can be concluded that the clause is not a specify legacy in the strict sense because it does not specify the source of the estate that the amount of money should be taken from.

However, it could be regarded as a general legacy because the amount of money that is to be paid may come from any source of the deceased’s estate. Essentially, because of the fact that the legacy is torn in between the general legacy and the special legacy, it can be conceded that the type legacy in this case is he demonstrative legacy. The legacy will take effect because the amount of money can be fetched from a wide source of the estate of the deceased but only with the condition that until she attains the age of 18 years.

References

Celantano Estate v Ross 2014 BCSC 27

Chiang Shirley v Chiang Dong Pheng  [2015] 3 SLR 770

Culbertson v Culberston(1967), 60 WWR 187 (Sask CA)

Halsbury’s Laws of England(4th ed., 1998)

Intestate Succession Act chapter 146 ( 1967)

Mental Capacity Act (Cap. 177)(2010)

Probate and Administration Act(Chapter 251)(1985)

Smith Estate (Re) (2003) 2003 SKQB 361.

Subordinate Courts of the Republic of Singapore Practice Directions Amendment No. 1 of 2012

Wood Estate v. Arlotti-Wood (2004) BCCA 556