1. Execution, Alteration, Amendment, Revocation and Interpretation of Wills Flashcards
What three things must a person have and what one thing must they do to make a will?
- Capacity at the time the will was made;
- Knowledge and approval; and
- s9 WA formalities
Other than privileged wills made by armed forces, what is the minimum age to make a will?
18
What should a solicitor do if a client lacks testamentary client and therefore cannot make a valid will?
Solicitor should not accept instructions for a will
Who has the burden of proving a testator did not have mental capacity, and what is the statutory test for this?
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
What is the statutory test a reiteration of and what three things did this require the testator to understand at the time of execution?
The common law (Banks v Goodfellow) test, which required the testator to understand, at the time the will is executed:
- The nature of the act of making a will;
- The extent of their property; and
3a. The claims which they ought to give effect to even if they subsequently do not
3b. Have no
disorder of the mind that perverts their sense of right, or prevents the exercise of their natural
faculties in disposing of property by will.
In most cases, when is the material time?
When the testator signs the will
What is the exception to the rule that the material time is when the testator signs the will?
Parker v Felgate:
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:
- The will was prepared in accordance with the instructions; and
- At execution, the testator understood they were signing a will for which they had previously given instructions.
fluctuating capacity examples
- Someone with dementia may have ‘lucid’ days on which it would be possible to satisfy the test for testamentary capacity and other days not.
- A testator may temporarily lack capacity as a consequence of a particular life event. In Key v Key
the testator’s wife died a week before he made his will and the testator was found to lack capacity
due to the effect of grief on his mental state.
What is the golden rule in Kenward v Adams?
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.
is the golden rule a legal obligation?
no, but it is considered best practice
what are the practical implications involved in complying with the golden rule?
- finding a medical practitioner willing to carry out the
assessment has been acknowledged (Wharton v Bancroft) - a failure to comply–
will not automatically demonstrate poor practice
in which circumstances is capacity presumed?
- will appears rational on the face of it, and
- executed in line with s9 WA.
who has the burden of proof if there is any doubt re capacity?
if someone can provide evidence sufficient to raise doubt, then the presumption of capacity is rebutted and the burden of proof reverts to the propounder of the will to demonstrate the testator satisfied Banks v Goodfellow
who is the propounder of the will?
the person seeking to admit the will to probate, usually the executor.
how difficult is it to satisfy Banks v Goodfellow?
threshold is relatively low (a person may lack the ability to manage their own affairs and require help with day-to-day activities and still have
testamentary capacity to make a will)
what is the relationship between the statutory Mental Capacity Act 2005 test and Banks v Goodfellow?
- The statutory test does not override or modify the specific common law test. The rule in Banks v Goodfellow and subsequent case law remains correct.
- If an application of the two tests would
produce a different outcome the common law test prevails.
If a client lacks testamentary capacity, can they still make a will?
the court can authorise the execution of a will on behalf of an adult who lacks capacity to make one for themselves (s 18(1) MCA), if:
- they are persuaded that there are grounds to diverge from the existing testamentary position; and
- it is in the person’s best interests to do so.
What two things are required to satisfy the intention (knowledge and approval) to make a will?
Testator must have:
- General intent to make a will, and
- Specific intent to make that particular will, i.e. they knew and approved of the contents
Who has the burden of showing the testator did not have knowledge and approval, and how might they show this?
The person challenging their intention, and they may do so by showing the testator acted due to fear, fraud, undue influence, or mistake
In what three circumstances does the presumption that if the testator acted with capacity, they had specific intent not apply?
- Testator is blind or illiterate
- Will is signed on testator’s behalf
- Suspicious circumstances where the will drafter substantially benefits from the will
What is required for a gift in the third situation, suspicious circumstances where will drafter benefits, for the gift to not fail?
Evidence of testator’s specific intent must be put forward by the person claiming the gift
What is required for a will that has been made under duress, i.e. as a result of force and fear, to be valid?
Court must pronounce that it is valid, and issue a grant in solemn form
What can occur where an omission from a will is made under duress?
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.
What must anyone alleging undue influence show?
More than mere persuasion, which rose to the level of coercion or pressure that overpowered the freedom of action of the testator
What are the 3 formalities for a valid will under s9 WA?
- In writing
- 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)
- 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)
is an attestation clause needed?
no, but it raises a presumption that the will was executed in accordance with s9 WA (presumption of due execution)
What is an attestation clause and what is required if one is missing?
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
example attestation clause
signed by the above named [testator] in our joint presence and then by us in his/hers
In what situation is a special attestation clause required, and what must it show?
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
example special attestation clause
signed by the above named [testator] in our joint presence and then by us in his/hers all signatures having been added after this document had been read to [testator] by [name of person] when [testator] seemed thoroughly to understand and approve its contents
What is required of a signature?
Any mark, as long as it shows the testator’s intention to give effect to the will
Where must a signature be placed?
It can be anywhere
In a situation where someone signs the will on the testator’s behalf, is the will invalid if this person is also a witness?
No
What are the two requirements where someone signs the will on the testator’s behalf?
- Testator must be present when signature is made
- Testator must indicate to the witness that the signature has been put there at his request
Although there are no formal requirements of a witness, what must they be able to do?
Generally understand the significance of being a witness to a signature of a will
Do the witnesses need to see the contents of the will?
No
Does the witnesses need to know that the testator is signing a will?
No
Why can a blind person not be a witness to a will?
Because they are unable to witness the visible act
Whilst a mentally unsound person may not witness a signature when they are mentally unsound, what will not invalidate a will?
A person who witnesses a signature when they have capacity, who later loses capacity
which two things could constitute negligence if not advised on properly?
- if the correct execution process is not followed
- if solicitor fails to advise on the effect of s15 WA
For a document to be incorporated by reference into a will, what two requirements must be met?
- Document must exist at the date of the will
- Document must be referred to in the will
Therefore, references to what documents will not be incorporated into a will?
Documents expressed to be created after the fact, e.g. lists of items, or subsequent references in diaries
On to Alteration, Amendment, and Revocation
In what 3 ways may a testator amend their will?
- make manuscript amendments to the original will
- make a codicil to an existing will
- revoke the existing will
when are alterations made by someone other than the testator valid?
- intended by the testator
- in their presence and at their direction
When will a general alteration be valid?
If it can be proved it was made before execution, provided that the will reads naturally
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?
The original gift applies
What is the presumption given to unattested manuscript alterations?
They are rebuttably presumed to have been made after execution (ie invalid)
invalid»_space; original wording is effective
when is it presumed that manuscript amendments were made before execution?
- completion of a blank space
- obliteration
- obliteration with conditional intent to revoke
What is the effect of an alteration making the original gift illegible?
This is an obliteration and the original gift fails completely
what is interlineation?
writing has been inserted between existing lines of the document, often to add something previously omitted
What is a codicil?
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
What are the three requirements of a codicil?
- Must make reference to the will
- Must satisfy the formalities of a will, i.e. writing signed and witnessed
- Clause should be included confirming the unamended part of the will
What are the two ways a revocation of a will can occur?
- By law
- Deliberate act of the testator
What are the two situations in which a will is revoked by law?
- Marriage/civil partnership
- Divorce, nullity, or dissolution
What is the effect of a testator marrying after executing a will?
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
What is the effect of divorce, nullity, or dissolution on a will?
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
What gift provisions in a will will be relevant upon divorce/dissolution, and why?
Substitutional gifts conditional upon the spouse/civil partner predeceasing the testator, because they are deemed to have done so
What is required to exempt a will from these divorce/dissolution rules?
Contrary intention expressed in the will
What are the two ways a testator can revoke a will through deliberate act?
- Executing a later will/codicil
- Destruction
In addition to a later will/codicil, what also satisfies this revocation option?
Any writing declaring an intention to revoke the will, and executed with the same formalities (I won’t repeat them again)
What is the extent to which a later will/codicil will revoke an earlier will?
Only to the extent that it is inconsistent with or merely repeats the terms of the earlier will
How is a will revoked by destruction?
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
Put simply therefore, what is required for a will to be revoked by destruction?
Intention to revoke
What is the situation if only part of a will is destroyed?
Whether or not the will is fully revoked, or only revoked to the extent of the part that was destroyed will depend on the importance of the part which was destroyed, e.g. the signature page being destroyed will revoke the entire will if intent to revoke is evident
Regarding intention to revoke, what is the presumption if a will is found mutilated at the date of death?
It is rebuttably presumed to have been revoked with the testator’s intent
What is the other situation where a will is rebuttably presumed to have been revoked?
Where a will was last known to be in the testator’s possession, but cannot be found at the date of death
How does the court-applied doctrine of dependent relative revocation save a will?
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
What are mutual wills?
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
What is the effect of a mutual will conferring a constructive trust in favour of the other party?
If one testator dies, and the other changes their will (contrary to the agreement by mutual 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
On to Interpretation of Wills:
the will speaks from the date of death, subject to:
- a contrary intention
- except for as to beneficiaries
- a gift in a will will take effect as if the will was executed
As of when are the beneficiaries in a will determined?
The date of execution, subject to class closing rules
What is a legacy and what is a devise?
A legacy is a gift of personal property.
A devise is a gift of real property.
What is a specific legacy?
A gift of a specified part of the estate, e.g my BMW car with registration ABC1234
What is a general legacy?
A gift of a generic item which does not identify a particular item, e.g. a BMW car
may or may not be in the estate
What occurs if the item described in the general legacy is not in the estate?
The beneficiary can require the executors to purchase the item if there is sufficient funds
What is a pecuniary legacy?
A gift of cash
What is a demonstrative legacy?
A general or pecuniary legacy which identifies the source from which the gift is to be made
What is a residuary legacy?
Everything left in the estate after costs of administration, liabilities, and gifts
What are the two ways gifts can fail?
- Ademption
- Lapse
Under the doctrine of ademption, in what three situations will a specific gift adeem?
- No longer part of the testator’s estate
- Subject to a binding contract for sale
- No longer meets the description in the will
Does not apply to general legacies
Whilst a change in the substance of the subject matter will cause a gift to adeem, what will not?
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
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?
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
When will a gift fail by lapse?
If the beneficiary predeceases the testator
What will prevent a gift from failing by lapse?
A substitutional gift in the will accounting for the situation where the beneficiary predeceased the testator
What happens where there is no substitutional gift?
The gift falls into the residue
What happens if a residual gift lapses?
It passes under the rules of intestacy
Regarding objects, i.e. people, what is the exception to the general rule that the will is construed at the date of death?
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
Where a gift is to two or more people as joint tenants, i.e. jointly, what is required for the gift to lapse?
All joint tenants must predecease the testator. If not, the gift passes to the surviving tenants in proportionate shares.
This does not apply where a gift is simply split and given in equal shares. It has to be joint. Think right of survivorship
In what situation would the law of commorientes be applied, and what does it provide?
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
What is the special rule which operates where a beneficiary issue or lineal descendant predeceases the testator, and prevents lapse where a testator makes a gift in their will to their own children or lineal descendants?
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 (by branch).
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.
A gift to a beneficiary will fail if the beneficiary or their spouse/civil partner witness the will (s15 WA). Does this invalidate the entire will?
No, just the gift to the beneficiary witness fails
In what situation will a gift to a beneficiary not fail where that beneficiary witnesses the will, and why?
- there are two additional witnesses not caught by s15 WA, or
- will is subsequently confirmed by a properly executed codicil, or
- professional executor is a witness (s15 WA won’t invalidate their remuneration)
more on s15 WA
- the will remains valid
- beneficiary’s appointment as executor remains valid
What 4 groups does a gift to children apply to, and what one does it not?
Applies to:
- Legitimate children
- Illegitimate children
- Adopted children
- Conceived but unborn
But not stepchildren, unless adopted.
When will a class normally close?
When at least one beneficiary has a vested interest, to the exclusion of any potential beneficiary not then living
If a class closes, do beneficiaries who have not satisfied their contingency still qualify?
Yes as long as they are living when the class closes
Why does the inclusion of the word each of change the effect of the class closing rules?
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.
However, in the absence of a provision to the contrary, where each of is used, when does the class close?
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
How can the class closing rules be excluded?
By an express provision in the will
what is an attested alteration?
- signed by the testator and two witnesses
- witnesses can be different to the will witnesses
- signature needs to be in margin, opposite or near alteration
- can be initials
how may a testator confirm manuscript amendments not specifically attested?
- Re-executing the amended will as a whole
- Executing a subsequent codicil that affirms the will it amends
how to rebut the presumption in favour of completion of a blank space being made before execution (and therefore valid)
- internal evidence within the will
- affidavit of plight and condition signed by witnesses
how to rebut the presumption in favour of obliteration being made before execution (ie valid)
Infrared tech would be permitted if
- T did not intend to revoke the gift, or
- a 3rd party made the amendment
what happens to a gift by an unattested obliteration with conditional intent to revoke?
the original gift, if it can be ascertained, should be given effect to, and extrinsic evidence is permitted to establish the original wording
Clients should generally be advised against making manuscript amendments to avoid disputes under s21 WA. However, when may manuscript amendments be appropriate, and what should be done regardless?
- amendments have no impact on the interpretation or meaning of the will eg
— correction of a typo
—change to beneficiary’s address
—correction to spelling of a name - changes must be made urgently and a codicil/new will cannot be prepared
— urgent hospital treatment
— travelling abroad
Testator and witnesses should initial the alterations even if made before execution and even if unimportant
If there are inconsistencies re references to the date of the will or earlier codicils or number of existing codicils; what can be done to explain the discrepancy?
Affidavit evidence can be produced
When a testator executes a codicil this acts tie republish the will and any codicils. What does this mean?
Eg “I leave the picture hanging in the hallway at the date of my will to the youngest son of my brother Alan”
republishing the will means:
- If Alan had 2 sons at the date of the will but 3 sons at the date of the codicil, the youngest at the date of codicil would benefit
- if T replaced the painting with a cheap print by the date of the codicil, the beneficiary would inherit the cheap print
Which is more common, mutual or mirror wills?
Mirror
What is a mirror will?
- often used by couples
- the exact same terms
- no agreement that the couple should not revoke - survivor free to revoke prior to death of either person
- no constructive trust imposed
How to avoid the effect of s18/18B WA?
Draft the will in contemplation of marriage/CP:
- name the future spouse/Cp
- identify the intended ceremony
- express wording that testator does not want will to be revoked on the event of marriage
effect of s18A/18C WA
revocation by divorce/dissolution - will takes effect as if former spouse had predeceased the testator:
- appointment as executor or trustee is not effective
- any gifts will fail
effect of s18A/18C WA
revocation by divorce/dissolution - will takes effect as if former spouse had predeceased the testator:
- appointment as executor or trustee is not effective
- any gifts will fail
Subject to any contrary intention expressed in the will
Can a former spouse still being an IPFDA claim is s18A/C applies?
Yes
But a court order re divorce may affect the ability to bring a claim
