Kara Sears
Case law, also known as common law, is a law based on precedents set by previous judicial decisions rather than on constitutions, statutes, or regulations. It is used to guide future cases that involve similar circumstances. Case law is particularly relevant in common law systems, such as those in modern England and the United States, where the freedom of disposition by will is a well-established concept. In these systems, courts interpret statutes and apply precedents to determine the applicable law in a given case. This process involves examining how and why prior cases were decided. While higher courts typically do not have direct oversight over lower courts, litigants can appeal lower court rulings, including those that go against established case law, to higher courts. Appellate courts then have the opportunity to review both the precedent and the case under appeal, potentially overruling previous case law and setting new precedents.
| Characteristics | Values |
|---|---|
| Jurisdiction | Courts of chancery and ecclesiastical courts |
| Nature of the case | Forgery, fraud, accidental destruction, and suppression of will |
| Parties involved | Executors, legatees, testators, heirs, and beneficiaries |
| Legal concepts | Probate, revocation, and testamentary gifts |
| Applicable laws | Common law, civil law, and statutory law |
| Geographic scope | England, United States, and Iowa |
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Forged wills
Forgery is a crime under the Forgery and Counterfeiting Act 1981, which includes creating or altering documents with the intent to deceive. If the forgery involves attempting to obtain property or money, further charges under the Fraud Act 2006 could apply. Each case is judged individually, and the consequences of the forgery will be considered. Forgery is grounds for contesting a will, and if the will is proven to be forged in probate court, a previous valid will may be considered and distributed accordingly. If no other will has been found, the decedent will be considered to have died intestate, and the estate will be distributed based on intestacy laws.
If you suspect a will has been forged, it is critical to take swift legal action to protect the estate. This can be done by gathering evidence, consulting with an attorney, and filing a will contest in probate court. Evidence may include comparing signatures, collecting old versions of the will, or gathering testimonies from those who knew the testator's intentions. Photographs of the testator's signature on other documents can also be valuable evidence.
Working with a handwriting expert can be an effective way to prove forgery, as they can compare the signature on the will to known examples of the testator's handwriting. However, it is important to note that the defendant may employ other strategies to ensure the will is fulfilled, and the court will weigh the credibility of the handwriting expert.
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Fraudulent suppression
To establish a case of fraudulent concealment, a plaintiff must prove five elements:
- The defendant concealed or suppressed a material fact;
- The defendant was under a duty to disclose this fact to the plaintiff;
- The defendant intentionally concealed or suppressed this fact with the intent to defraud the plaintiff;
- The plaintiff was unaware of the fact and would have acted differently if they had known;
- As a result of the concealment or suppression, the plaintiff sustained damages.
In certain cases, a duty to speak may arise in four ways:
- Directly imposed by statute or other prescriptive law;
- Voluntarily assumed by contractual undertaking;
- Incident of a relationship between the defendant and plaintiff;
- Superior knowledge of one party, depending on the nature of their relationship.
For instance, in Mackintosh v. Jack Matthews & Co., 109 Nev. 628, 634-35, 855 P.2d 549, 553 (1993), the court held that nondisclosure is equivalent to fraudulent concealment when a person has a duty to speak to place the other party on an equal footing. However, in the absence of a relationship between the parties, no duty to disclose arises, and consequently, no liability for fraudulent concealment attaches to the non-disclosing party.
While fraudulent suppression pertains to civil law, there is a related concept in criminal law: the unlawful suppression of evidence. This occurs when a prosecutor improperly or intentionally hides or withholds material evidence, as outlined in Brady v. Maryland, 373 U.S. 83 (1963). This is distinct from the lawful suppression of evidence, which can be proposed by a defendant in a pretrial motion, and the exclusionary rule, which suppresses evidence obtained through an unreasonable search or seizure.
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Revocation
One method of revoking a will is by physically defacing the testator's signature, rendering the entire will invalid. This act signifies the testator's intention to revoke and is recognized in most states. However, determining the testator's true intent can be challenging, and courts generally admit extrinsic evidence to establish whether the revocation was complete or partial.
Divorce or annulment of marriage also leads to the automatic revocation of provisions related to the former spouse. The will is treated as if the former spouse predeceased the testator. While divorce revokes gifts to the former spouse, it typically doesn't affect gifts to their relatives or beneficiaries designated in non-probate assets, such as life insurance policies.
In the case of joint wills, revocation refers to nullifying or cancelling the previously agreed-upon terms. The legal rules regarding revocation vary across jurisdictions. Some jurisdictions require both will-makers to be alive and in mutual agreement for revocation, while others allow a surviving partner to unilaterally revoke the joint will by executing a new will.
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Witness requirements
The requirements for witnesses to a will vary depending on the jurisdiction. However, some general principles apply across most jurisdictions. Firstly, witnesses are crucial for the validation of a will, as they verify the legitimacy of the document and confirm that it was signed and executed by the testator (the person making the will) in accordance with the laws of the relevant jurisdiction. Without witnesses, a will may be considered invalid and unenforceable.
Most states require two witnesses to be present when the will is signed, and these witnesses must also sign the will themselves. Witnesses should be "disinterested," meaning they do not stand to inherit anything under the will. In some states, a beneficiary's spouse may also be disqualified from serving as a witness. It is important to choose credible and trustworthy individuals as witnesses, as they may be required to testify in court about the execution of the will. Witnesses must confirm that the testator appeared to be of sound mind and understood the implications of the document they were signing.
In some states, certain unwitnessed wills, such as holographic wills (written entirely or partially in the testator's handwriting), may still be valid. However, it is always best to have a will properly witnessed, regardless of the jurisdiction. While notarization is not required, it is common to attach notarized sworn statements from the witnesses, known as self-proving affidavits, which can streamline the probate process.
Witnesses to a will should be prepared to testify in court if necessary and answer all questions directly and truthfully. They must stick to the facts and provide objective testimony, only testifying to what they know and remember.
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Military wills
A military will, or "military testamentary instrument", is a legal document that outlines a person's wishes for their assets and dependents after their death. Military wills are created specifically by members of the armed forces and differ from traditional wills in several ways.
Firstly, military wills are governed by federal law, whereas traditional wills are subject to individual state laws. This distinction is outlined in the Floyd D. Spence National Authorization Act, which was signed in 2000 by President Clinton to accommodate the unique circumstances of military personnel, including frequent relocations and short-notice deployments.
Secondly, military wills are generally more flexible than traditional wills. They may be executed without the standard formalities such as the presence of a notary or witnesses, especially in cases of deployment where gathering civilian witnesses may not be practical. This flexibility, afforded by the Soldiers' and Sailors' Civil Relief Act, can make it more challenging to verify the authenticity of a military will or argue against its validity.
Given the complexities of military law and the unique circumstances of service members, it is recommended that individuals creating a military will seek legal guidance from an attorney familiar with military law. This can help ensure that the will is properly documented, valid, and enforceable, thereby minimizing potential family conflicts and ensuring the deceased's wishes are honoured.
To assist with the creation of a military will, military members can access various resources, including the Armed Forces Legal Assistance (AFLA) office, which offers free legal help to active-duty service members, reservists, retirees, and their families. Other resources include the Defense Finance and Accounting Services, the Department of Veterans Affairs, and the Military Pro Bono Project.
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Frequently asked questions
Case law is a law that is based on precedents, or the judicial decisions from previous cases, rather than law based on constitutions, statutes, or regulations.
Common law courts generally explain in detail the legal rationale behind their decisions, with citations of both legislation and previous relevant judgments, and often interpret the wider legal principles. Common law systems follow the doctrine of stare decisis, by which most courts are bound by their own previous decisions in similar cases.
Annotated codes produced by West and LexisNexis are a great way to find cases on a particular topic. Both the United States Code Annotated and the United States Code Service provide case citations after the text of the statute. The cases will be grouped together by topic and they will often include a short summary.
Lower courts may not rule against a binding precedent, even if it feels that it is unjust. If a judge acts against precedent, and the case is not appealed, the decision will stand.
