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 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
