1. Execution of Wills Flashcards
What are the three requirements of a valid will?
- Mental capacity
- Intention to create a will
- Due execution of a will - signed, witnessed and signed by two people.
What is the presumption of mental capacity?
Presumption is that T has capacity. Burden of proof is on person challenging the validity of the will (caveator).
What is undue influence and when is it made out?
Undue influence overpowers the volition of the testator.
It is not presumed but court will intervene if T surrendered to intolerable pressure. More likely when T is physically/mentally weak.
What are the consequences of ‘suspicious circumstances’ in the creation of a will?
Where there are suspicious circumstances, the rebuttable presumption of knowledge and approval does not apply and the gift will usually fail.
Eg of suspicious circumstances - where will drafter substantially benefits.
In what circumstances can an external document be incorporated in a will?
A will may identify another document but the document must exist at the date of the will and be referred to in the will as so existing. Otherwise it cannot be incorporated.
