n Thu, 10 Jun 2004, not@top-post.texas.net wrote:
FACTS.
. . . sole shareholders of a private company, . . .
testators transfered shares to beneficiaries
against loan accounts [but a minority shareholder
family member objects after death that the
testators made a mistake]
The question you've posed isn't whether, in general, there may be some
"defects" in the will in addition to those found by the court, but,
instead, whether there (i) there are the _particular_ defects of the
sort you've earlier suggested (but only by conclusory hints at the
expense of all factual specifics) and, if so, (ii) whether they are of
the nature that entitles the court to direct "rectification" (what in
other jurisdictions than your sometimes is just referred to as
"contruing" and "ambiguous" yet otherwise valid will).
NO: 'entitles the court to direct "rectification" ' is not being raised
HERE. I'm claiming that, as with the previous recification granted,
the "wording" of the will doesn't reflect the true intentions.
Thus, that the court in question has ruled there to be some "defects"
does make "it . . . more difficult to deny" that there may be other
"defects" too but is not anywhere near sufficient to support an
inference of further defects that are rectifiable.
Well of course, but it's STRONG extra evidence, because it should
normally be difficult to make ANY change to a will.
* * * [I]f [for no apparent reason] the loan
was paid-off before death, then the share transaction
would have been completed before death.
As previously noted, the "FACTS" as _you_ posited them were that the
eventually to die testators, while alive, "transfered [the] shares" in
question to persons also named as beneficiaries in their wills albeit
also "against loan accounts" and so you continue to persist in failing
to make sufficiently clear, factually, what you here mean by
"transferred shares" and also by "against loan accounts" although (as
I have hardly been alone in noting, correctly) what the _actual_
terms/provisions of the agreements by which these persons "transferred
shares" and what you mean by "against loan accounts" is key to
understanding which of the "Opinons" you've also earlier hypothesized
is the more correct.
Try this:-
It's a 'family business' and at an A.G.meeting, with the auditor
overseeing: will(s) are signed and transfer certificates are signed.
The minority signed nothing. And the secretary [part of the majority]
fraudulently backdated the AGM minutes from June to Feb, for tax
purposes. The AGM minutes 'recorded' the details [persons and
amount] of share transfers. Transfer certificates were signed by
transferors and transferees EXCEPT the minority disenter.
All expect the minority, signed the second page of the minutes which
recorded the 'resolutions'.
Under a former such provision, however, the failure of [namedPerson]
to pay the sum of money in question (unless the obligation to so so
were forgiven, e.g., in/by a will provision so directing) might create
a cause of action to recover that loan but not necessarily a
law-enforceable right to rescind the shares' transfer (in other words,
a claim for damages for breach of contract but not for specific
performance), .....
I think you've revealed the KEY here: the 'transfer' is effected during
the testator's life even though the corresponding payment is not,
because non-payment doesn't void the transfer unless it's specified.
And importantly if NOT paid-off then NOT
completed the transaction.
One can't tell from your "FACTS" whether your here stated
"importantly" is/isn't correct because you still have not (in this
thread) reported what the (actually important/operative) "FACTS" were
about what, nonetheless, you refer to as a "transfer".
There is law in your country, as in Gt. Britain and in the U.S. (in
these respects, somewhat comparable jursdicitions), to the effect that
-- assuming that, in fact, there is not any law-relevant reason for
such a refusal, including that there is not any languge in the
underlyng agreement providing otherwise -- the timely tender of full
payment as/when called for by an underlying contract (if actually that
by whatever is the explicitly agreed or otherwise by applicable law
provided "legal tender" in the jursdiction) is the functional
equivalent of payment, even if the creditor then refuses such tender.
!! This would suggest that the 'transfer of the shares' occured during
the testators life time, EVEN THOUGH the [effective] payment occured
only at death ?! Ie. the essence of the transaction was completed by
the 'intentions' and the implimentation of the "payment", by absolving
the resulting debt at death cannot be said to have prevented the
'transfer' from being completed until death ?
Too bad. Thanks for your patience.
Now let's move to a deeper level of complication:
the minority, in fact refused to sign any thing, including share transfer
forms and local-legislation requires the transferee to sign for a private
[non quoted] company's share transfers. But since the minority was the
sole beneficiary [of the residual - after the share were dished out] s/he
inherits the 2 shares from the estate; and the 1 other share from the
surviving (still) testator is potentially lost by refusing to sign/accept ?
Note, however, that you also neglect to explain factually why you
believe your "BTW" probably relevant to the will provisions and other
transactions to which you only vaguely/obliquely refer.
I wanted to test, various circumstances which could [or not] make
the transfer incomplete, until the debt is settled. As I understand
you: my contention fails, since the transfer is done/complete
independant of the settling the resultant debt [unless the 'contract'
specifies other wise] ? Is this correct ?
Please say which opinion would be more correct.
Probably, the first one, but only (as noted) only to the extent of
your having demonstrated the "connection" to which you refer. What
you still have not (in ANY way!) done is show that there is anything
even remotely questionable (let alone: unenforceable) by the favored
treatment of the majority shareholders, whether as a matter of "the
law of wills" or "the law of closely-held corporations" or otherwise,
and so, relatedly, you have not shown that the will is even arguably
in need of or otherwise susceptible of "rectifcation" in the way you
imply you'd like to see.
This SEPARATE issue i
