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The requirements for the execution of a valid will, set out in the Wills Act 1837, s 9.
In order to execute a valid will, the will must be in writing; it must be signed by the testator or by some other person and in his presence and by his direction; it must appear that the testator intended by his signature to give effect to the will; the signature must be made or acknowledged by the testator in the presence of two or more attesting witnesses each of whom attest to the testator's having signed the will in his presence and acknowledge his signature and signs the will in the presence of the testator.
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Ireland—Purchaser’s contract negotiation guide—purchaser’s initial checklist for contract negotiation This Checklist is intended to help a purchaser’s solicitor carry out an initial review of the first draft of a contract for the purchase of commercial property issued by the vendor by identifying headline points to check. Sometimes the vendor’s solicitor will have drafted the contract without a full appreciation of all the issues that will need to be dealt with and so it is important for the purchaser to be alive to anything missing at the outset and flag any likely issues or contract requirements as early as possible (even if only as a placeholder within the contract pending instructions or further information). Identification of vendor and purchaser The heads of terms may not define the parties accurately: • Companies Registration Office—assuming the vendor is a company, the purchaser’s solicitor should check the Companies Registration Office that the correct party and company number is mentioned in the heads of terms and that it matches the details shown in the title...
English law legal opinion—assumptions checklist This Checklist relates to English law legal opinions which are typically issued by a lender's lawyers as a condition precedent to the utilisation of a loan facility. It assumes that the loan is bilateral with a bank lender incorporated in the UK and that the addressee of the legal opinion is the Lender which is the client of the law firm issuing the legal opinion. It also assumes that the borrower is a company incorporated in England and Wales, the transaction documentation which is being opined upon is governed by English law and the underlying loan is unsecured. However, for assumptions which are typically included where the loan is secured or where the transaction has a cross-border aspect, see Additional assumptions to be considered where the loan is secured and Additional assumptions to be considered where the transaction has a cross-border aspect below. It forms part of a set of checklists relating to legal opinions. The other Checklists are: • English law legal opinion— qualifications...
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Affidavit or witness statement evidenceIn an application for a grant of representation, usually the information contained in application form PA1P or PA1A or the online application (formerly a separate statement of truth) is the only evidence the court will require in order to prove the deceased’s Will. However, there may be circumstances where further evidence is needed, which may be in the form of an affidavit or witness statement.With effect from 2 November 2020, the Non-Contentious Probate Rules 1987, SI 1987/2024 (NCPR 1987) are amended by the Non-Contentious Probate (Amendment) Rules 2020, SI 2020/1059 to provide for the use of witness statements as an alternative to affidavits for certain non-contentious probate applications and processes.Due executionThe inclusion in a Will of an attestation clause showing compliance with the requirements of section 9 of the Wills Act 1837 raises a presumption of due execution of the Will. Practitioners will need to decide whether each testamentary document satisfies the requirements of WA 1837, s 9.There may be doubts about due execution of the...
The High CourtThe Chancery Division of the High Court, which operates after 2 October 2017 as part of the Business and Property Courts, undertakes a broad range of work which includes contentious probate business and claims relating to estates and trusts. Practitioners issuing proceedings in the Chancery Division should be familiar with the Civil Procedure Rules 1998 (CPR) and the Chancery Guide which provides practical information and guidance not contained in the CPR or the PDs. The Chancery Guide is to be used in conjunction with the CPR and PDs. In particular, CPR 57 together with the Chancery Guide, para 23 for probate and inheritance claims and CPR 64 together with the Chancery Guide, para 25 for estates and trusts.In 1862, the first rules for Contentious Business were introduced. In 1873 the Probate Court was absorbed into the Probate, Divorce and Admiralty Division of the High Court with the Rules for Contentious Business being absorbed into the Rules of the Supreme Court in 1964. In 1971, jurisdiction in probate matters...
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Director’s certificate for a bilateral loan: borrower [insert date] To: [insert full name and address of lender] Dear [insert full name of lender] I am a director of [insert full name of borrower] (the Borrower). I refer to the facility agreement dated [insert date of facility agreement] between the Borrower and [insert name of lender] (the Lender) as amended, novated, supplemented, restated or replaced from time to time in accordance with its terms (the Facility Agreement). Unless defined otherwise in this certificate, or the context requires otherwise, all words or expressions defined in the Facility Agreement have the same meaning in this certificate. I am authorised by the Borrower to give this certificate. I certify as follows: Relevant documents Attached to this certificate are copies of each of the following: 1 [the constitutional documents of the Borrower; 2 [the PSC Register of the Borrower, which is correct, complete and not amended or superseded as at a date no earlier than the date of the Facility...
Director's certificate This is a Precedent director’s certificate for use by the borrower of a bilateral facility. . What is a director’s certificate? Delivery of an original director's certificate is usually one of the conditions precedent in a facility agreement. Conditions precedent are the conditions that need to be fulfilled for funding to occur. They are included to provide the lender with a mechanism to ensure that, before funds are lent to the borrower: • certain documentary matters are dealt with, and • certain factual circumstances exist Documentary conditions precedent The documentary conditions precedent to lending are usually listed in a schedule to the facility agreement. ). As well as an original director’s certificate, documentary conditions precedent typically include certified copies of certain documents such as: • the constitutional documents and register of members and register of directors of the borrower, any guarantor and any party providing security for the transaction (a third-party security provider) • the board resolutions of the borrower, any guarantor and any third-party security...
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I am aware that if a spouse of a residuary beneficiary under a Will witnesses the Will then the gift in the Will is no longer valid. However, are there any repercussions if a daughter of an Executor and residuary beneficiary witnesses the Will if that Executor/residuary beneficiary is still alive? If a close relative (other than a spouse or civil partner) of a beneficiary were to act as one of the witnesses to the testator's signature on a Will, that would not invalidate the gift to that beneficiary. However, as explained in Butterworths Wills, Probate and Administration Service, it is plainly desirable in practice to choose witnesses who can give credible evidence if the need should arise. For this
Where the original Will is faded and only legible by artificial means, what procedure should be adopted to obtain a grant? This Q&A considers a scenario in which the Will is not suffering from any physical damage, obliterations or unexplained deletions or amendments to the extent that a proactive plight and condition affidavit would be required (see Commentary: Affidavit of plight and condition and finding: Tristram and Coote's Probate Precedents [A6.11]). In this scenario, the Will is not illegible but is only truly legible when read with artificial means, save that such means are merely reading against a light rather than on a flat surface. Any legible Will is able to be admitted to Probate, but the Probate Registry may have a difficulty with this despite the execution formalities apparently being perfectly in order and legible. While the Will may not be physically damaged in the accepted sense of the word it is, nonetheless, not in the condition it was when executed and in those circumstances the Probate Registry may...
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This week's edition of Corporate weekly highlights includes the publication of four consultation responses by joint working parties of the Company Law Committees of the City of London Law Society (CLLS) and the Law Society, concerning: FCA consultation paper 21/21 on changes to the listing regime (Primary Markets Effectiveness Review); the BEIS Draft Statement on the Secretary of State’s power to call in acquisitions under the National Security and Investment Act 2021; FCA consultation paper 21/18 on the extension of the climate-related disclosure regime to standard listed companies; and the Law Commission’s consultation on corporate criminal liability reform. Other developments include the FRC’s thematic review of companies’ going concern and viability statements, and the government’s dematerialisation of shares proposal (enabling companies to issue shares without paper share certificates).
Private Client analysis: Under what circumstances can a claim for undue influence succeed? A recent case of a contested will explores this notoriously challenging head of claim.
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