1+4. Validity of Wills and Intestacy Flashcards
Chapter 1+4 of Textbook
Beneficial Joint Tenancy: One person dies, what happens to the beneficial interest?
The beneficial interest of the dying spouse passes by survivorship to the surviving joint tenants.
How insurance policies pass according to the the Will + Intestacy Rules
General Rule: proceeds of policy paid to deceased’s PR’s to distribute money in accordance with these rules
Exception: Policies written to benefit certain individuals in trust
How Pensions pass (Will + Intestacy Rules)
General Rule: Upon death of employee, pension paid by trustees of the pension fund to members of family or dependent chosen at trustees’ discretion
Exception: Certain pension schemes may provide that pension has to be paid to employee’s PR to be distributed in accordance with will
What order will solicitors use when dealing with the deceased’s person’s assets after death:
- Property passing outside of the will
- Property passing under the will
- Any property not disposed of in 1 or 2 passes on intestacy
Can gifts be made to executors in the Will?
Yes
DEF: Grant of Probate
Executors apply to HMCTS for a grant of probate which confirms that (1) the will is valid and (2) the executor has authority to act
How do executors deal with ‘general gifts’ (esp if not owned by testator)
Ex. may obtain this gift with funds from the estate
What if a fund has an insufficient balance to satisfy a demonstrative gift?
gift will be paid from the rest of the estate
Three Requirements of a Valid Will
Wills Act 1837:
(1) Capacity
(2) Intention
(3) Formalities
Test for capacity?
Banks v goodfellow (Soundness of Mind, memory and understanding)
testator must understand:
1. Nature of their act and its effects
2. extent of their property
3. claims they ought to consider (from persons which could potentially have claims), even if rejected
4. Testator should not suffer from a disorder of the mind
When does the Banks v Goodfellow test apply?
At the time the will is executed
What if someone is mentally incapable of making a will? Will they have one?
Yes, the Mental Capacity Act will have a will made on their behalf, Court of Protection will allow authorised person to execute the will and gives effect to it with the court seal
What is the ‘golden rule’ wrt Capacity
A solicitor preparing a will for a testator whose mental state is in doubt should follow Kenward v Adams ‘golden rule’, ask medical practitioner to provide written report confirming testator has testamentary capacity and ask doctor to witness the will - and solicitor should record their own view in a file note
Who has the burden of proof when asserting the testator had capacity?
The person asserting the will is valid must prove it
What will give rise to the presumption of capacity
If the will is (1) rational on its face and (2) the testator showed no evidence of mental confusion prior to making it
If someone wishes to challenge the testator’s capacity - who has the burden of proof?
The burden shifts to the person alleging this to prove a lack of capacity (harder to prove with Doctor’s reports and an experienced solicitor)
Exception in Parker v Feldgate
a will can be valid if the testator has capacity when they give instructions even if they lose capacity by the time of execution - VERY NARROW APPLICATION
General Rule: Intention
The testator must have general and specific intention at the point of signing (must intend to make a will and intend to make the particular will being executed)
When does the presumption of knowledge and approval (intention) arise?
If the testator has capacity and has read and executed the will
When does the presumption of knowledge and approval (intention) NOT arise?
(1) Testator blind / illiterate / not signing personally (evidence will be required here if trying to get the grant of probate)
(2) Suspicious Circumstances (ie. prepared by a beneficiary)
General Rule: Undue Influence
Where a testator with capacity appears to have known and approved the contents of the will, any person who wishes to challenge the will (or any part of it) must prove one or more of the following to prevent some or all of the will from being admitted to probate:
- Force or fear (through actual or threatened injury)
- Fraud (eg. after being misled by some pretence)
- Undue Influence (coercion or duress need to be proven): freedom of choice overcome by intolerable pressure, but judgement remained unconvinced
- Persuasion stopping short of coercion would not quality
- Mistake: presumption will not apply if all or part of will was included by mistake, distinguish between actual mistake and misunderstanding as to the true legal meaning of words used in a will (latter case = words would not be omitted)
Formalities of Will Execution
s 9 Wills Act 1837:
(1) Will is in writing, signed by testator (or some other person in his presence with his direction)
(2) testator intended his signature to give effect to the will
(3) Signature made / acknowledged in presence or two or more witnesses present at the same time
(4) Each witness either (i) attests and signs the will or (ii) acknowledges his signature in presence of testator
Requirements for the ‘Presence’ of the witnesses
Must have physical AND mental presence (must be aware testator is signing a document and must see the signing) - acknowledgement also fine here
Will any witness be acceptable?
If witness is beneficiary or spouse / civil partner of B, the will is valid but the gift to the witness or their spouse will FAIL
