In your sentiment, should a testate be given entire testamentary freedom?
Under Succession Law, a testate has the right to dispose his belongings as he wishes. For illustration, he can take to dispose all his estates to a entire alien or his friends. In this sense, he may except his household member, relations, spouse from having his estate under his will.
An issue arises that there are no absolute testamentary freedom can be guarantee in Succession Law. The testate will jump to some regulations where they have no pick but to follow, which will curtail what a testate can make. For cases, an illegal intent gift will non be upheld in any legal system. The existent inquiry is whether the testamentary freedom must be restricted apart from the unjust limitation. My reply is surely non.
Harmonizing to Montesquieu in his book of Esprit des Lois, he stated that ‘ownership dies with the man’ . It is clear that a dead individual can non have a belongings as stated in Succession Law although we refer the belongings of a testate as ‘the deceased’s estate’ . Since a decease individual can non have his belongings, he besides can non command how the dispose of belongings upon his decease. This statement is doubtless against the cardinal rule of testamentary freedom where a individual can dispose his estate freely on decease.
In fact, testamentary freedom included several distinct but interrelated belongings rights. For illustration, the right to take who receives such belongings, the right to dispose or endow belongings during life or at decease ; the right to take the timing and character in and at which the donee receives the belongings ; and the right to name another individual to do these picks. [ 1 ]
To reason that we should non let the limitation of testamentary freedom, we must first look into the definition of will. Will has non a general definition. Therefore, we should look into the on the job definition. “A will is a papers by which a individual directs his or her estate to be distributed upon decease ” as stated in Black ‘s Law Dictionary ( 7th Ed ) edited by Bryan Garner. Based on the definition, it can be understand that a will is simply a papers, which merely takes consequence on the decease of the testate.
Besides that, Kole Abayomi gave the definition of will in his book of ‘Wills: Law And Practice’ . Based on the definition, it said that a will is a testamentary papers which is revokable, voluntarily made, executed and witnessed harmonizing to jurisprudence by a testate with a sound head wherein he disposes of his estate topic to any restriction imposed by jurisprudence and wherein he gives such other directives as he may hold tantrum to his personal representatives otherwise known as his executors, who administer his estate in conformity with the wants manifested in the will. [ 2 ]
In England, the jurisprudence provides that the freedom of testamentary is non restricted. It means that the testate has own the sum freedom to dispose of his belongings in mode he wants to. The right testamentary freedom is provided under Section Three of the Wills Act 1837. This subdivision does non specify the intending a will, but it describe the rights to do a will. It stated that: “ It shall be lawful for every individual to invent, bequeath or dispose of, by his will, executed in the mode hereinafter required, all existent estate and all personal estates, which he shall be entitled to, either at jurisprudence or in equity at the clip of his decease… ” Therefore, this subdivision provides that everyone has the cardinal human right to dispose of his belongings and allow the testate the unrestricted power of testation.
In add-on, we must let testamentary freedom as found in the definition of will and Section 3 of Wills Act 1837. Testamentary freedom must be upheld and non be restricted because one of the oldest rule of testamentary freedom is that testate has a natural right to command the temperament and ingestion of the belongings during life and upon his decease. The natural right of testamentary freedom warrants that an person, working hard to make wealth, are freely to pull off his wealth as they wish during life and at his decease. The testator’s head will be really insecure because their wants that carried out on decease will convey difference and statement among the household member if the jurisprudence allows limitation on testamentary freedom. The testate will lost his assurance in doing a will because he know that he can non dispose his belongings in the mode that he wishes if the jurisprudence restricts the testamentary freedom.
The following issue is whether restrict testamentary freedom enables duties owed by the deceased to his household in his life-time to be continued? It says that a partner has a legal duty to take attention of his or her partner and kids. Next, it besides believes that the responsibility of attention should go on after one of the partner decease. If this statement has been followed, it will make the cardinal purpose which accomplishing the security and saving of a household instead than a system of unrestricted freedom of testation.
It can be argued that the above state of affairss will raise another of import issue. What if a married woman who treat their hubby in a worse mode, which ne’er showed love and regard when the hubby alive, it is just for the married woman to acquire the belongings from her hubby after his decease? Another illustration is when married woman has shown a entire neglect in the matrimony but fortunate plenty because ne’er acquire divorce by the hubby. In the two state of affairss above, the best manner to penalize the married woman is disinherit her. In making such manner, it can move as the testate ‘weapon’ to curry the attending, attention and regard from his married woman and kids. In fact, I believe that a married woman or kids who treat the testate with attention and regard will non disown by the testate. Therefore, we should let testamentary freedom because the testate has the right to pull off his temperament of estate. He might desire to go forth all his belongings to the 1 who take attention and love him a batch and no 1 will oppugn him about that. In the other manner, the testate can take to disown the individual who treat him/ her severely.
The following issue is whether by curtailing testamentary freedom lessens the likeliness of differences following the testator’s decease? By cut down the testator’s pick from disposing his estate, which chiefly focus on the household, there is less hazard that the testate will upset his close household member by giving his estate to some unexpected individual.
It can be argued that by curtailing the testamentary freedom, the household members will hold the clear outlook in a portion of heritage. They know that they will besides acquire the belongings from the testate if they do nil. In this sense, it might advance the indolence of the household members. They will work less difficult, therefore, cut downing the wealth of the state. The household members might wish the testate dead in order to inherit his belongings every bit shortly as possible.
Besides, I strongly disregard the bing government of testamentary limitations. It can be said as really unhealthy because it does non continue the chief aim of doing a will by a testate. Will is non all about the temperament of estate, it is the last want of the testate, which help the testate speaks after his decease. The limitation on testamentary freedom besides reduces the potency for pleasance in giving.
In decision, a Will should be allowed to talk in the manner it was made. A Will is the wish or desire of a testate on how his belongings should be distributed upon his decease. It is of import to let testamentary freedom. [ 3 ]