Cavendish Publisher Ltd Essay Example

Cavendish Publisher Ltd Essay Example Cavendish Publisher Ltd Essay Cavendish Publisher Ltd Essay The old view of the judges role, the so-called declaratory theory of law, was that they were merely declaring the existing law. Lord Esher stated in Willis v Baddeley26: There is no such thing as judge-made law, the judges do not make the law, though they frequently have to apply existing law to circumstances as to which it has not previously been authoritatively laid down that such law is applicable. The modern view is that judges do make law. Lord Radcliffe said: there was never a more sterile controversy than that upon the question whether a judge makes law. Of course he does. How can he help it? 27 The reality is that judges are continually applying the existing rules to new fact situations and thus creating new laws. Law must adapt to changing circumstances and Parliament can be slow28. Therefore, from any disadvantage you could always derive some positive elements. The making of law in decided cases offers opportunities for growth and legal development, which could not be provided by Parliament. The courts can more quickly lay down new principles, as the judges from time to time have to deal with cases of first impression or extend old principles, to meet novel circumstances. If a new event that has not been decided before comes to the court (original precedent), it is likely that the judge will look at cases which are close in principle and decide to use similar rules. This idea of creating new law by analogy can be seen in Hunter v Canary Wharf29. The interference with the reception on Hunters television because of Canary Wharf Tower having been built was likened to the case of Bland v Molselely30, in respect to the loss of a view. There has built up over the centuries a large quantity of cases that illustrate a vast number of the principles of English law. The cases exemplify the law in the sort of detail that could not be achieved in a long code of the Continental type. However, therein lies another weakness of case law. Its very bulk and complexity make it increasingly difficult to find the law31. Moreover, the advantage of certainty is diminished, as there are too many cases that seem really confusing. It is fair to say that judicial precedent has considerable significance within the laws of England, however it is important to see whether the significance is justified, and whether it is current position is adequate. Consistency plays a central role in justifying the decisions taken in particular case. Some believe that treating two cases in the same way can lead to the law being inflexible and rigid and a lack of freedom is formed. This to a certain extent is true but I feel that if two cases are very alike with just material facts being different, then they should be treated in the same way. This leads to fairness and certainty as mentioned previously. However, there are a lot of factors, which make it difficult to achieve consistency, as statements of law on a legal issue are usually made by more than one judge and a single judge make several stamens of law32. Practically any legal system has official hierarchies of decision-making, where superior courts have the power to resolve inconsistent statements of lower court judges. Therefore, there is a degree of inconsistency where the decisions delivered by different judges on certain points of law. In any cases, the rules of precedent do not explain why judges obey the rules of precedent. Neither do they indicate the degree of consistency that is likely to be precedent at any given time33. On the whole the advantages are outweigh the disadvantages and it the best system we have at the moment and still remains highly significant in English legal system. The Practice Direction of 1966 allows the Highest Court in the hierarchy to reverse previous decisions that helps to ensure that old and out dated rules can no longer apply to modern society. Due to the increase of case law the importance of judicial precedent will increase, as it will cover nearly every legal situation. It cannot be achieved by any codified legal system. Even though a part of British constitution has now been codified in statutes it only brings advantages. It can be referred to and it will be easy to see when someone breaches these rights. Before the Human Rights Act was made, citizens had nothing to back them up when they felt their rights as a citizen had been infringed apart from taking the case to the European Court in Strasbourg. Now, there are many different cases that allow citizens to do things they were never previously lawfully allowed to do. The Human Rights law is now entrenched in the UK Judicial system, and so it will be much more difficult to repeal an entrenched Act of Rights when there is a breach of basic human rights. It will be actionable directly in the UK courts. Word count: 3,905 1 Penny Darbyshire, English Legal System, 5th edn, Sweet Maxwell, p. 22 2 Gary Slapper David Kelly, The English Legal System, 6th edn. , Cavendish Publisher Ltd. , pp. 68, 89 3 J. Stone, The Ratio of the Ratio Decidendi, 22 Modern Law Review,1959, pp. 597-8

Discover Family History With Probate Records and Wills

Discover Family History With Probate Records and Wills Some of the most genealogically-rich documents on an individual are actually created following their death. While many of us actively search for an ancestors obituary or tombstone, however, we often overlook probate records - a big mistake! Generally well-documented, accurate, and packed with numerous details, probate records can often provide answers to many stubborn genealogical problems. Probate documents, in general terms, are records created by a court after an individuals death that relate to the distribution of his or her estate. If the individual left a will (known as testate), then the purpose of the probate process was to document its validity and see that it was carried out by the executor named in the will. In cases where an individual did not leave a will (known as intestate), then probate was used to appoint an administrator or administratrix to determine the distribution of assets according to formulas set by the laws of the jurisdiction. What You May Find in a Probate File Probate packets or files may include any of the following, depending upon the jurisdiction and time period: willsestate inventories, or lists of assetsappointments of executors or administratorsadministrations, or documentation of the distribution of assetspetitions for guardianship of minor childrenlists of heirslists of creditors or accounts of debts ...and other records considered to be important to the settlement of an estate. Understanding the Probate Process While laws governing the probate of a deceaseds estate have varied according to time period and jurisdiction, the probate process usually follows a basic process: An heir, creditor, or other interested party initiated the probate process by presenting a will for the deceased (if applicable) and petitioning the court for the right to settle an estate. This petition was usually filed with the court that served the area where the deceased owned property or last resided.If the individual left a will, it was presented to the court along with testimony of witnesses as to its authenticity. If accepted by the probate court, a copy of the will was then recorded in a will book maintained by the clerk of court. The original will was often retained by the court and added to other documents pertaining to the settlement of the estate to create a probate packet.If a will designated a particular individual, then the court formally appointed that person to serve as executor or executrix  of the estate and authorized him or her to proceed by issuing letters testamentary. If there was no will, then the court appointed an administrator or administratrix - usual ly a relative, heir, or close friend - to oversee the estates settlement by issuing letters administration. In many cases, the court required the administrator (and sometimes the executor) to post a bond to ensure that he would properly complete his duties. One or more people, often family members, were required to co-sign the bond as sureties.An inventory of the estate was conducted, usually by people with no claim to the property, culminating in a list of property - from land and buildings down to teaspoons and chamber pots!Potential beneficiaries named in the will were identified and contacted. Notices were published in area newspapers to reach anyone who might have claims on or obligations to the deceaseds estate.Once bills and other outstanding obligations on the estate were met, the estate was formally divided and distributed among the heirs. Receipts are signed by anyone receiving a portion of the estate.A final statement of account was presented to the probate court, which then ruled the estate as closed. The probate packet was then filed in the records of the court. What You Can Learn From Probate Records Probate records provide a rich resource of genealogical and even personal information about an ancestor which can often lead to still other records, such as  land records.Probate records almost always include: Full nameDate and place of  death Probate records may also include: Marital StatusName of spouseNames of children (and possibly birth order)Names of childrens spouses of married daughtersNames of grandchildrenRelationships between family membersClues to the  trade or occupation  of your ancestorCitizenshipResidences of your ancestor and living descendantsLocations (and descriptions) where your ancestor owned propertyFeelings of your ancestor toward family membersClues to the deaths of other family membersClues to adoptions or guardianshipsInventory of items owned by the deceasedClues to your ancestors economic standing (e.g. debts, property)Your ancestors signature How to Find Probate Records Probate records can usually be found in the  local courthouse  (county, district, etc.) that presided over the area where your ancestor died. Older probate records may have been moved from the local courthouse to a larger regional facility, such as a state or provincial archives. Contact the clerks office of the court where the person resided at the time of death for information on the location of probate records for the time period in which you are interested.