1. Execution, Alteration, Amendment, Revocation and Interpretation of Wills Flashcards
What two things must a person have and what one thing must they do to make a will?
Have:
- Capacity at the time the will was made, and
- Intention to make a will
and
Execute the will in accordance with the required formalities.
Other than privileged wills made by armed forces, what is the minimum age to make a will?
18
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 for capacity a reiteration of and what three things did this require the testator to understand at the time of execution?
The common law test, which required the testator to understand:
- The nature of the act of making a will
- The extent of their property, and
- The claims which they ought to give effect to even if they subsequently do not
In most cases, when is the material time re: testator’s capacity?
When the testator signs the will
What is the exception to the rule that the material time re: capacity is when the testator signs the will (the rule in fluctuating capacity)?
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 at least understood they were signing a will for which instructions had previously been given
What two intentions are required to satisfy the intention 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 intention, 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 three formalities for a valid will?
- 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)
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 (usually though affidavit of due execution)
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/blind, 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
What is required of a signature?
Any mark, as long as it shows the testator’s intention to give effect to the will
Where should a signature be placed to attest a will?
It can be anywhere, but should ideally be at the end of the will to avoid doubt
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
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:
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 alterations?
They are presumed to have been made after execution, unless merely filling in a blank space in a will form
What is the effect of an alteration making the original gift illegible?
This is an obliteration and the original gift fails completely, unless it can be shown that testator did not intend by the obliteration to revoke the clause, or where the testator (unsuccessfully) attempted to substitute other wording. In these cases extrinsic evidence may be used to find the original wording.
