1.1 Wills - Validity

Question 1

Who holds the burden of proof re testamentary capacity?

Answer 1

Executors

• Person seeking to admit will to probate
• UNLESS Executors can prove valid will =>

Opposing parties
- UNLESS sufficient evidence to prove invalid will

Question 2

What is required for mental capacity?

Answer 2

Actual (at time of execution)

[Banks v Goodfellow] > T’s soundness of mind, memory, understanding > T understands;

1) Nature of act
2) Property
3) Moral claims which they ought to give effect

NOT suffer insane delusion

• Medical report
• Otherwise > Will should be witnessed by medical practitioner [Golden Rule]

Presumed (at time of instruction)

1) T had capacity when instructing solicitor > Will preparation
2) Will prepared according to solicitor’s instructions
3) T was capable of understanding/understood executing will at time of instruction (NOT at time of execution)

Question 3

What is required for knowledge & approval?

Answer 3

T knew + approved contents

• Actual
• Presumed (where T had capacity) (UNLESS rebutted)

UNLESS

• Undue influence
• TP signed on T’s behalf + NO attestation clause
• Suspicious circumstances (will drafter was beneficiary)

Question 4

What is required for undue influence?

Answer 4

Burden of proof > Opposing party
- High burden

General Equitable doctrine > Lifetime gifts + contracts > Presumed UI

• Threats/Coercion/Blackmail
• Relationship exists > Honest advice

Testamentary > Actual UI
- Coercion (persuade X to do sth by force/threat)

=> NOT reflect T’s true intent => VOID will

Question 5

What is required for creating a will under s.9 Wills Act 1937?

Answer 5

1) Testamentary capacity
- 18yo or over
- Mental capacity

2) In writing
- Handwriting/Printing
- Any language

3) Signature
- T
- TP (T’s presence + direction)
=> Any mark + at end of will (or before, but maybe problematic)

4) T intends signature effectuates will

5) Signed in front of 2 or more Ws at same time
- Ws aware (NO need to see/know writing)

6) Each W signed in front of T
- T aware (NO need to see/know writing)
- If attestation clause included > Presumed execution

• Witness
• Mental capacity
• NOT required to know will contents

Question 6

What is required for a statutory will?

Answer 6

T’s circumstances changed in major way

Property adeemed

Change re relationship between previous/potential Bens + T

Doubts re previous will

T never made will before

High value assets

T’s lack of capacity > Court of Protection to make will
- Medical evidence
- Same effect as T making valid will
- T > 18yo
=> Can make provision T could have made w capacity

Question 7

What is required for a privileged will?

Answer 7

1) Privileged testator
- Military soldier
- Mariner/Seaman
- Naval member
- (Exists even if T ceased being member of privileged group)

2) Oral/Writing
3) NO signature/witnessing
s. 9 NOT applicable here

Question 8

What is required for a foreign will?

Answer 8

Wills Act 1963

Conforms to law of state

• Will executed
• T domiciled/habitual residency (at time of execution/T’s death)
• T was national (at time of execution/T’s death)

Question 9

What is required for mutual wills? What are their disadvantages?

Answer 9

1) 2 or more parties execute will

2) Parties agree > Survivor bound by agreement
- Prevent survivors modifying will

3) First party dies
4) Oral/Writing (land disposal)

Disadvantages

• Dictates manner of dealing w property on death
• Surviving T cannot respond to changes after first T’s death
• Extrinsic evidence to prove mutual will > May not be so obvious

Question 10

What is required for Letter of Wishes?

Answer 10

1) Testator
- Dated
- Signed
- Addressed to executors, family

2) NOT legally binding (NO Ws required)
3) NOT publicly available on death

=> Accompanies will

• Useful guidance > T’s intent, family expectations
• Serve to challenge will