1. Execution 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 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?
When the testator signs the will (executes it)
What is the exception to the rule that the material time is when the testator signs the will?
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 things 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 executing 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
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
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
On to Interpretation of Wills:
Except for as to beneficiaries and subject to a contrary intention, a gift in a will will take effect as if the will was executed when?
At the date of death
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
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 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?
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.
A gift to a beneficiary will fail if the beneficiary or their spouse/civil partner witness the will. 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?
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
What three groups does a gift to children apply to, and what one does it not?
Applies to:
- Legitimate children
- Illegitimate children
- Adopted children
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 are the exceptions to the age 18 rule for making wills
- Married minors
- Those in military service
What is the rule in banks v good fellow
Must understand the broad nature of the act and its effects
Appreciate the general extent of the property they’re disposing of
Understand the moral claims they ought to give effect to; have no disorder of the mind
