1. Execution, Alteration, Amendment, Revocation and Interpretation of Wills

Question 1

What two things must a person have and what one thing must they do to make a will?

Answer 1

Have:

1. Testamentary Capacity
2. Intention to make a will (knowledge and approval)
3. Comply with section 9 formalities.

Question 2

What must be shown for knowledge and approval?

Answer 2

General intention to make a will and the specific intention to make the will in qustion

Question 3

What are the formal requirements for a will?

Answer 3

1. in writing
2. signed by the testator (or some person at his direction)
3. intention to give effect
4. signed or acknowledged by the testator in the presence of two witnesses
5. signed by two witnesses in the presence of the testator (Ws do not need to sign in front of each other)

Question 4

Other than privileged wills made by armed forces, what is the minimum age to make a will?

Answer 4

18

Question 5

Who has the burden of proving a testator did not have mental capacity, and what is the statutory test for this?

Answer 5

The person alleging the testator lacked capacity must show at the material time, the person is unable to make a decision for themselves because of an impairment or disturbance in functioning of the mind

Question 6

What is the presumption as to testamentary capacity?

Answer 6

There is a presumption that, unless the contrary is proved, the testator has capacity, so the burden of proving that the testator lacked testamentary capacity falls on the person who seeks to prove, after the testator’s death, that the will is invalid.

Question 7

What is the golden rule with relation to testamentary capacity?

Answer 7

when taking instructions for a will from a client who is elderly or seriously ill a medical practitioner should be instructed to make an assessment of the testator’s capacity, and a contemporaneous record of the assessment and conclusion should be made.

Not a legal obligation but is considered best practice.

Does not confirm the testator definitely did have testamentary capacity; the purpose of the rule is to reduce the likelihood of later disputes.

Question 8

What are the requirements for testamentary capacity?

Answer 8

Common Law test (Banks v Goodfellow)

1. The nature and effect of the act of making a will
2. The extent of their property, and
3. The moral claims which they ought to give effect to even if they subsequently do not
4. AND have no disorder of mind preventing their sense of right.

NB: the bar for disorder of mind is very high. ‘Insane delusions’ or hallucinations may incapacitate a testator; significant mental or physical health issues generally will not - must be relevant/linked!

Question 9

In most cases, when is the material time?

Answer 9

When the testator signs the will

Question 10

What is the exception to the rule that the material time is when the testator signs the will?

Answer 10

If the testator did not have mental capacity at execution, but did when giving instructions to the drafter, the testator will be deemed to have acted with capacity if:

1. The will was prepared in accordance with the instructions, and
2. At execution, the testator at least understood they were signing a will for which instructions had previously been given

Question 11

If a testator does not have capacity to make a will, what may the court do?

Answer 11

Order a statutory will.

The court must be persuaded there are grounds to diverge from the existing testamentary position and it is in the person’s best interests to do so.

This could be because the person has never made a will and the intestacy rules would otherwise apply, or because of a change in circumstance.

Question 12

What two things are required to satisfy the intention to make a will?

Answer 12

Testator must have knowledge and approval:

1. General intent to make a will, and
2. Specific intent to make that particular will, i.e. they knew and approved of the contents

Question 13

Who has the burden of showing the testator did not have the intention (knowledge and approval), and how might they show this?

Answer 13

Knowledge and approval are presumed if the testator has capacity.

The person challenging their intention must raise doubt as to knowldge and approval and thus rebut the presumption.

The burden of proof then shifts to those seeking to enforce.

Question 14

In what three circumstances does the presumption that if the testator acted with capacity, they had specific intent not apply?

Answer 14

1. Testator is blind or illiterate
2. Will is signed on testator’s behalf
3. Suspicious circumstances where the will drafter substantially benefits from the will

Question 15

What is required for a gift in the third situation, suspicious circumstances where the will drafter benefits, for the gift to not fail?

Answer 15

Evidence of testator’s specific intent must be put forward by the person claiming the gift.

Evidence could be attestation clause or affidavit of knowledge and approval.

Question 16

What is required for a will that has been made under duress, i.e. as a result of force and fear, to be valid?

Answer 16

Court must pronounce that it is valid, and issue a grant in solemn form.

Question 17

What can occur where an omission from a will is made under duress?

Answer 17

The disappointed beneficiary can be entitled to the gift on the basis of the earlier will.

Duress is deemed to invalidate the revocation and the new will is read in line with that earlier valid provision.

Question 18

What must anyone alleging undue influence show?

Answer 18

More than mere persuasion, which rose to the level of coercion or pressure that overpowered the freedom of action of the testator.

There is no presumption of undue influence in relation to testamentary dispositions (which differs to lifetime arrangements) and whether undue influence has occurred is a question of fact.

The burden of proving undue influence lies with the person making the allegation and the court requires evidence - “It is not enough to prove that the facts are consistent with the hypothesis of undue influence. What must be shown is that the facts are inconsistent with any other hypothesis”.

Question 19

What are the three formalities for a valid will?

Answer 19

1. In writing
2. Signed by the testator (or some person in T’s presence and at T’s direction such that it is clear T intended to give effect to the will)
3. Signed by two witnesses each in the presence of the testator, but not necessarily in each other’s presence (or their previous signature is acknowledged in T’s presence)

Question 20

What is an attestation clause and what is required if one is missing?

Answer 20

A signed clause confirming the formalities have been met. If one is not provided, the proponent of the will (i.e. the person offering it into probate) must provide proof these formalities were followed

Question 21

In what situation is a special attestation clause required, and what must it show?

Answer 21

A special attestation clause is required where the testator is illiterate, and it must show that the will was read to T and he understood and approved the contents, i.e. he had the specific intent to make that particular will

Question 22

What is required of a signature?

Answer 22

Any mark, as long as it shows the testator’s intention to give effect to the will

Question 23

Where must a signature be placed?

Answer 23

It can be anywhere - but at the end of a will indicates the necessary intention.

Signatures at the beginning or in the middle of will can be problematic.

Question 24

What are the two requirements where someone signs the will on the testator’s behalf?

Answer 24

1. Testator must be present when signature is made
2. Testator must indicate to the witness that the signature has been put there at his request

Question 25

Although there are no formal requirements of a witness, what must they be able to do?

Answer 25

Generally understand the significance of being a witness to a signature of a will

Question 26

Why can a blind person not be a witness to a will?

Answer 26

Because they are unable to witness the visible act

Question 27

Whilst a mentally unsound person may not witness a signature when they are mentally unsound, what will not invalidate a will?

Answer 27

A person who witnesses a signature when they have capacity, who later loses capacity

Question 28

For a document to be incorporated by reference into a will, what two requirements must be met?

Answer 28

1. Document (clearly identified) must exist at the date of the will
2. Document must be referred to in the will as being in existence

Question 29

Therefore, references to what documents will not be incorporated into a will?

Answer 29

Documents expressed to be created after the fact, e.g. lists of items, or subsequent references in diaries

Question 30

When will a general alteration be valid?

Answer 30

If it can be proved it was made before execution, provided that the will reads naturally

Question 31

What is the situation where a will has words crossed out and it can’t be proved that the alteration occurred before execution or that it was made with the same formalities as the will, i.e. writing signed and witnessed?

Answer 31

The original gift applies.
The alteration is void.

Question 32

What is the presumption given to unattested alterations?

Answer 32

They are presumed to have been made after execution, unless merely filling in a blank space in a will form

Question 33

What is the effect of an alteration making the original gift illegible?

Answer 33

This is an obliteration and the original gift fails completely due to an implied intention to revoke.

Obliteration means word is not decipherable by nature means.

Question 34

What is Conditional revocation, and what is its effect?

Answer 34

A conditional intention to revoke is found where the testator attempted to substitute another figure for the original wording and the attempt at substitution has failed.
* If it can be shown through evidence that revocation was conditional, extrinsic evidence is allowed to clarify the testator’s intention (i.e. infra red technology/copy of original wording to give effect to initial gift).

Question 35

When are manuscript changes appropriate?

Answer 35

Manuscript alterations may sometimes be appropriate where:

1. The amendments have no impact on the interpretation or meaning of the will. This could include correction of a typo, change to a beneficiary’s address or correction to the spelling of a name.
2. The changes must be made urgently and a codicil or new will cannot be prepared. This may arise where a testator requires urgent hospital treatment or is due to travel abroad.

If any amendments are made, the testator and witnesses should initial the alterations even if making these before execution and even if the amendments are unimportant.

Question 36

What are three ways a will can be revoked by destruction?

Answer 36

Requires an intention by the testator to revoke.
* Also, same conditions relating to mental capacity apply as those required when making a will.

1) Destruction via intention (ie. purposely tearing will up);
2) Destruction of its essential matters (ie. testator and witness’ signatures)
3) Successful obliteration, meaning that the writting underneath is illegible.

Question 37

What presumption applies where a will is discovered in a mutilated condition?

Answer 37

if evidence shows that will was in testator’s keeping prior to death, the presumption then is that testator mutiliated it.

Question 38

What is a codicil?

Answer 38

Brief document that adds to, amends, or partially revokes an existing will

Can be used to remedy a gift which was void because the beneficiary witnessed the will

Question 39

What are the three requirements of a codicil?

Answer 39

1. Must make reference to the will
2. Must satisfy the formalities of a will, e.g. writing signed and witnessed
3. Clause should be included confirming the unamended part of the will

Question 40

When are codicils appropriate?

Answer 40

Codicils may be used to:

• create new provisions in a will e.g. add a legacy for a new beneficiary
• edit existing provisions in a will e.g. change the value of a pecuniary legacy
• revoke provisions in a will e.g. remove a particular beneficiary’s entitlement

Question 41

What are the potential drafting pitfalls of a codicil?

Answer 41

• Not expressly noting a change to the testator’s name or address
• Not affirming the parts of the original will which remain unchanged
• Missing or incorrect cross reference to the date of the original will or earlier codicil
• New codicil that refers only to the original will and not the previous codicil(s)
• The effect of the codicil does not make sense when read in conjunction with the original will and/or fails to take into account changes made by a previous codicil
• Incorrect references to clause numbering (this is more likely when freestanding clauses are added rather than changes made to existing clauses)

Question 42

Summary of alterations given effect to:

Answer 42

Made before execution of the will/ codicil

Obliterations with intent to revoke

Attested alterations

Completion of a blank space (presumed to have been completed before execution)

Subsequently confirmed by re-execution or codicil, with reference to the alteration

Question 43

Summary of alterations not given effect to:

Answer 43

· Made after execution of the will/codicil (provided original gift still apparent)

· Obliterations without intent to revoke

· Obliterations by 3rd parties

· Unattested alterations (presumed to have been made after execution)

Question 44

What is the effect of executing a codicil on the will?

Answer 44

This republishes the will (and any codicils) as if it had been executed on the date on which the codicil was executed (relevant for construction).

Thus, codicils can correct problems in the will (such as a witness & beneficiary problem)

Question 45

What are the two ways a revocation of a will can occur?

Answer 45

1. By law
2. Deliberate physical act of the testator (writing revoked is not enough).

Question 46

Can a codicil republish a previously revoked will?

Answer 46

Yes, it can revive a previously revoked will.

Question 47

What are the two situations in which a will is revoked by law?

Answer 47

1. Marriage/civil partnership
2. Divorce, nullity, or dissolution

Question 48

What is the effect of a testator marrying after executing a will?

Answer 48

The will is revoked unless it appears, from the will, that the testator was expecting to marry a particular person and they intended that all or part of the will should not be revoked by that marriage

Question 49

What is the effect of divorce, nullity, or dissolution on a will?

Answer 49

Will is partly revoked as to the appointments/gifts to the former spouse/civil partner as they are treated as having died on the date of divorce/dissolution

The remainder of the will is valid

Question 50

What gift provisions in a will will be relevant upon divorce/dissolution, and why?

Answer 50

Substitutional gifts conditional upon the spouse/civil partner predeceasing the testator, because they are deemed to have done so

Question 51

What is required to exempt a will from these divorce/dissolution rules?

Answer 51

Contrary intention expressed in the will

Question 52

What are the two ways a testator can revoke a will through deliberate act?

Answer 52

1. Executing a later will/codicil
2. Destruction

Question 53

In addition to a later will/codicil, what also satisfies this revocation option?

Answer 53

Any writing declaring an intention to revoke the will, and executed with the same formalities (I won’t repeat them again)

Question 54

What is the extent to which a later will/codicil will revoke an earlier will?

Answer 54

Only to the extent that it is inconsistent with or merely repeats the terms of the earlier will

Question 55

How is a will revoked by destruction?

Answer 55

Burning, tearing, or otherwise destroying the will by the testator (or someone at T’s direction and in their presence) with the intention of revoking the will

Question 56

Put simply therefore, what is required for a will to be revoked by destruction?

Answer 56

Intention to revoke

Question 57

What presumptions apply to missing or damaged wills?

Answer 57

Missing - the testator is presumed to have destroyed their will with an intention to revoke it, unless evidence is presented to suggest otherwise (Patten v Poulton)

Damaged - the testator is presumed to have carried out the act of damage/destruction with the intention to revoke, unless evidence suggests otherwise

Those administering the estate of the deceased will have the burden of rebutting a presumption

Question 58

What is the situation if only part of a will is destroyed?

Answer 58

If just part of the Will is destroyed, only those parts will be revoked (unless the destroyed part includes the signature, in which case the entire Will is revoked).

• Detruction must be done with the intention of revoking the Will, so accidentally destroying it will not result in revocation

Question 59

What is the other situation where a will is rebuttably presumed to have been revoked?

Answer 59

Where a will was last known to be in the testator’s possession, but cannot be found at the date of death

Question 60

How does the court-applied doctrine of dependent relative revocation save a will?

Answer 60

If the testator’s intention to revoke the will was conditional on a future event, and the event did not take place, the original will, even if destroyed, may be valid if it can be reconstructed

Question 61

What are mutual wills?

Answer 61

Where two or more people make wills with the same clauses conferring reciprocal benefits, further to an agreement between them to make such wills and not revoke them without the consent of the other

Question 62

What is the effect of a mutual will conferring a constructive trust in favour of the other party?

Answer 62

If one testator dies, and the other changes their will, a beneficiary harmed by this can apply to court for an order that the recipient of the changed gift transfers it to the original beneficiary

Question 63

As of when are the beneficiaries in a will determined?

Answer 63

The date of execution, subject to class closing rules

Question 64

What is a legacy and what is a devise?

Answer 64

A legacy is a gift of personal property.

A devise is a gift of real property.

Question 65

What is a specific legacy?

Answer 65

A gift of a specified part of the estate, e.g my BMW car with registration ABC1234

Question 66

What is a general legacy?

Answer 66

A gift of a generic item which does not identify a particular item, e.g. a BMW car

Question 67

What occurs if the item described in the general legacy is not in the estate?

Answer 67

The beneficiary can require the executors to purchase the item if there is sufficient funds

Question 68

What is a pecuniary legacy?

Answer 68

A gift of cash

Question 69

What is a demonstrative legacy?

Answer 69

A general or pecuniary legacy which identifies the source from which the gift is to be made

• Clearly state who will receive what and from where.

Question 70

What is a residuary legacy?

Answer 70

Everything left in the estate after costs of administration, liabilities, and gifts

Question 71

What are the two ways gifts can fail?

Answer 71

1. Ademption
2. Lapse

Question 72

Under the doctrine of ademption, in what three situations will a specific gift adeem?

Answer 72

1. No longer part of the testator’s estate
2. Subject to a binding contract for sale
3. No longer meets the description in the will

Does not apply to general legacies

Question 73

Whilst a change in the substance of the subject matter will cause a gift to adeem, what will not?

Answer 73

A mere change in name or form

Example:

• Shares in ABC plc which change in form due to a corporate restructuring but the shares are still in ABC plc: gift does not adeem
• Shares in ABC plc which goes into liquidation and is taken over by XYZ plc, and shareholders receive new shares in XYZ plc: gift adeems as the substance is different

Question 74

Although the law generally speaks from the date of death when it comes to gifts, what is the one specific and testable exception to this, and what is the effect of this?

Answer 74

If the testator gives a gift of my car, the courts will presume this to mean the car the testator had on execution of the will and therefore treat it as a specific legacy. If this specific car is not in the estate on death, the gift adeems.

This is avoided by use of the words the car I own on my death

Question 75

When will a gift fail by lapse?

Answer 75

If the beneficiary predeceases the testator

Question 76

What will prevent a gift from failing by lapse?

Answer 76

A substitutional gift in the will accounting for the situation where the beneficiary predeceased the testator

Question 77

What happens where there is no substitutional gift?

Answer 77

The gift falls into the residue

Question 78

What happens if a residual gift lapses?

Answer 78

It passes under the rules of intestacy

Question 79

Regarding objects, i.e. people, what is the exception to the general rule that the will is construed at the date of death?

Answer 79

Will is construed at date of execution, as to objects, e.g.:

A gift of “all my shares in ABC plc to the eldest son of John” is a gift of however many shares the testator had at the date of death to whoever the eldest son of John was at the date of execution

Question 80

Where a gift is to two or more people as joint tenants, i.e. jointly, what is required for the gift to lapse?

Answer 80

Where a gift is left to two or more beneficiaries jointly, the gift will not lapse unless all these beneficiaries die before the testator.

If, for example, one of two joint beneficiaries dies, the remaining beneficiary will take the whole gift.

Think right of survivorship

Question 81

In what situation would the law of commorientes be applied, and what does it provide?

Answer 81

In a situation where parties die at the same time and it is impossible to determine who died first, e.g. car crash, the law of commorientes provides that, for succession purposes, the younger person survives the elder

Question 82

What is the special rule where a gift is made to a testator’s child or other lineal descendant, e.g. grandchild, and the beneficiary child or descendant predeceases the testator?

Answer 82

The gift will pass to the issue of the beneficiary if they are living, and unless a contrary intention is shown, it will occur per stirpes.

Note this only applies where a testator gives a gift to their issue or lineal descendant who:

(1) Predeceases the testator and
(2) Leaves living issue of their own.

It does not apply to gifts to parties who aren’t issue or lineal descendants.

Question 83

In what situation will a gift to a beneficiary not fail where that beneficiary witnesses the will, and why?

Answer 83

Where there are at least two other witnesses who are not beneficiaries or spouse/civil partner, because the formal requirement that a will have two witnesses will be satisfied irrespective of the beneficiary acting as a subsequent witness

Question 84

What three groups does a gift to children apply to, and what one does it not?

Answer 84

Applies to:

1. Legitimate children
2. Illegitimate children
3. Adopted children

But not stepchildren, unless adopted.

Question 85

When will a class normally close?

Answer 85

When at least one beneficiary has a vested interest, to the exclusion of any potential beneficiary not then living

Question 86

If a class closes, do beneficiaries who have not satisfied their contingency still qualify?

Answer 86

Yes as long as they are living when the class closes

Question 87

Why does the inclusion of the word each of change the effect of the class closing rules?

Answer 87

The class closing rules operate to close a class off so that the pool of assets can be divided up among vested and contingent holders, and of course paid to vested beneficiaries immediately. E.g. “£5,000 to the children of John” requires those beneficiaries to be determined to know how many ways to divide the total pool of £5,000.

Whereas, “£5,000 to each of the children of John” does not require the class to close at all to determine how much each will receive. Each will receive the £5,000.

Question 88

However, in the absence of a provision to the contrary, where each of is used, when does the class close?

Answer 88

At the testator’s death, and if there are no class members eligible, the gift will fail and not continue until the at least one class member is eligible

Question 89

How can the class closing rules be excluded?

Answer 89

By an express provision in the will

Question 90

What presumption does an attestation clause raise?

Answer 90

Presumption of due execution.