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vypracovaná otázka (19kový) č. 3 (q_3.doc)

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1. Civil vs. Criminal law – differences in terminology

CIVIL LAW:

1. regulates the relationships between individuals or bodies
2. as for parties to the action – a civil case involves two or more individual people or bodies – civil actions are usually started by individuals – plaintiffs; a civil action between Ms. Sanchez and Mr. Smith would be described as “Sanchez vs. Smith”, writing the name of the person who started the action first
3. examples: law of contract, tort, property
4. civil proceedings terminology

A plaintiff sues (brings an action against) a defendant.

5. if the proceedings are successful they result in judgement for the plaintiff and the judgement may order the defendant to pay the plaintiff money, or to transfer property to him, or to do or not to do something (injunction), or to perform a contract (specific performance)
6. in civil cases the word liable is used (as guilty in criminal cases)
7. standards of proof: on the balance of probabilities, the court weighs all the evidence and decides what is most probable
8. courts practising civil jurisdiction:
9. magistrates – they have civil jurisdiction over licensing and family matters but they have criminal jurisdiction as well
10. county courts – only civil jurisdiction
11. High court – civil apart from appeals

CRIMINAL LAW:

12. regulates the legal relationships between the state and individual people and bodies
13. by this law the state regulates the conduct of its citizens, criminal offences range from petty (parking offences) to the very serious (murder, rape, etc.)
14. as for the parties to the action – a criminal case involves the state and an individual person or body
15. criminal actions are started by the prosecution (prosecuting authority – the state)
16. a criminal case against a person called Ms. Sanchez would be described as “The people vs. Sanchez” in the U.S. and “R. (Regina, that is, the Queen) vs. Sanchez” in England
17. criminal proceedings terminology:
18. a prosecutor prosecuting a criminal
19. if the proceedings are successful the result of the prosecution is a conviction, the defendant may be punished by one of a variety of punishments ranging from life imprisonment to a fine, or else may be released on probation or discharged without punishment or dealt with various other ways
20. in criminal cases the word guilty is used
21. standards of proof: beyond reasonable doubt, the prosecution must prove the guilt of a criminal otherwise a crime cannot be proven if the person judging it doubt the guilt of the suspect and have no reason (not just a feeling or intuition) for this doubt
22. courts practising criminal jurisdiction:
23. magistrates
24. Crown court – exclusively criminal jurisdiction

2. Family law – probate

Probate is the general term used to cover the law of wills, succession, inheritance, intestacy, and administration. The probate laws have three objectives:

25. to safeguard the deceased’s creditors
26. to ensure that reasonable provision is made for the deceased’s dependants
27. to distribute the balance of the estate in accordance with the known – or presumed – intentions of the deceased.

The common law laid down its own rules for securing these objectives, but these laws have been replaced by detailed statutory laws, mainly of nineteenth-century origin, which lay down rules as to how a valid will is to be made, how personal representatives are appointed, the extent of their powers and duties, and finally, how the assets are to be distributed and to whom. The personal representatives of the deceased person will find out his wishes, either by looking at his written will or by consulting the rules laid down by Parliament as to the presumed wishes of the average person who dies without living a will. The person who leaves a will can choose who will be his/her executors and if s/he dies intestate they will be selected by following an arbitrary set of rules.

Intestacy

If a person dies without having made a will disposing of all his property, called total intestacy, the personal representatives will distribute the estate in accordance with the intestacy rules laid down in the Acts. The order of entitlement under the English law is the surviving spouse, the issue, the other relatives (parents, brothers and sisters, etc.).

If person dies leaving a will, but the will does not dispose of all his/her estate, s/he is said to have died partially intestate. In this case, both the terms of the will and the laws of succession need to be applied.

The personal representatives

These people are the guardians of the deceased ’legal personality’. They can sue on his/her behalf (on the behalf of the estate) or be sued. They are not personably liable, it is the estate suing or being sued, and the personal representatives are mere nominees through whom the estate acts. There are two types of personal representatives:

1. executors (female executrix) – personal representatives appointed by a will
2. administrators – personal representatives not appointed by a will.

They have similar powers and duties, only one personal representative is needed to administer an estate.

Unless the will has no executors somebody has to apply for the grant (the court’s confirmation in the form of the certificate). If there is no will the estate will be vested in one or more administrators. Parliament has laid down an order of priority between competing applicants based largely on the closeness of the applicant’s family links to the deceased – surviving spouse, children, parents, brothers and sisters, etc. Once it has been decided who is entitled to become the personal representative(s), the prospective executor or administrator must apply to the Probate Registry for the courts’ written confirmation of his/her appointment.

Wills

A will in order to be valid must be written by a person over eighteen and of sound mind and must be intended to act as a will and to be its maker’s ’last will and testament’.

There are two main advantages of making a will:

1. when intestacy laws will not produce a satisfactory distribution of the estate. Since circumstances can change, it is always sensible to avoid possible problems in the future e.g. inflation, by expressing gifts in terms of fractions or percentages of the estate so that the relative value of each gift is maintained at the same level.
2. apart from ensuring that the estate is given to the right people in the right proportions, a will can avoid family problems

The requirements of a will (formalities):

Every will must comply with the detailed requirements of section 9 of the Wills Act 1837:

28. that the will be in writing
29. it be signed at the foot or end by the testator and
30. two witnesses must then sign the will in the presence of the testator

Although these requirements seem straightforward, a lot of wills are turned down over the years because of the failure to meet the strict wording of the provisions.

Witnesses

There must be at least two witnesses to the will. Any adult, except someone who is blind, can be a witness, but the witness must see the testator sign, and then sign the will himself.

The will is not valid if the witness does not see the testator sign or if the testator signs after the witness. The witness need not see the contents of the will; all he is doing is witnessing the testator’s signature, not the contents of the will. He is there as an independent witnesses that the testator signed the will freely and voluntarily. He cannot benefit from the will. Any gift to the witness will be invalid. Testators often ask close relatives to witness their wills. In such a case the witness should check whether he (or his spouse) would benefit from the will, if so, someone else will have to witness the will.

Drafting a will

A will that complies with the requirements of the Wills Act and which was made with testamentary intention will be upheld by the courts as a valid and binding will. Therefore the personal representatives will have to follow its instructions exactly – even if it is clear that the testator made a mistake when drafting it. This is because the law requires the written directions of the testator to be followed, and if he leaves clear and unambiguous instructions they must be obeyed. Only if there is some ambiguity or uncertainty in the will itself can the court consider other evidence, such as letters written by the deceased or memories of conversation with him/her. Thus, the language of a will must be clear and unambiguous, and the wording carefully chosen.

Revoking or altering the contents of a will

If a person wants to cancel his/her will s/he can do so by making a new one and commencing it with the phrase ’I hereby revoke all former wills and codicils made by me’. Any alteration should be treated as a new will, even if the alteration of amendment is only minor.