13.1 Validity of wills and codicils

Question 1

Who is a testator?

Answer 1

The person who makes the will

Question 2

What are the three components for a valid will?

Answer 2

The testator must have:
1) Testamentary capacity - they must have had capacity at the time the will was made
2) Intention - intention to make a will
3) Execution - they must have executed the will in accordance with certain formalities

Question 3

What is a privileged will?

Answer 3

Those aged 16 or 17 can make a privileged will - made by members of the armed forces on active service or seamen at sea

Question 4

How is capacity assessed?

Answer 4

Testator must be aged 18 or over and have mental capacity. In accordance with MCA 2005 and Banks v Goodfellow test.

Question 5

Explain the principles behind the Banks v Goodfellow Test

Answer 5

To have sufficient mental capacity, the testator must have understood at the time of execution of their will:
→ [Nature of act] The nature of the act (they were making a will and its effects)
→ [Extent of property] The extent of their property
→ [Claims to make] The claims to which they ought to give effect

Question 6

What is meant by the material time?

Answer 6

When the testator executed (signed) the will

Question 7

Can a will take effect if a testator lacks capacity at the date of executing the will?

Answer 7

There is an exception:

If the will was prepared in accordance with those instructions (when there was sufficient capacity), and at the time of execution, the testator understood they were signing a will for which instructions had previously been given, the testator will be deemed to have acted with capacity.

Question 8

What is meant by intention when making a will?

Answer 8

General intention to make a will + specific intention to make the particular will (known and approved the contents of the will)

Question 9

What is the rebuttable presumption of knowledge and approval?

Answer 9

If the testator had the required mental capacity, they acted with the requisite knowledge and approval.
** Does not apply if testator is blind / illiterate / will signed on the testator’s behalf / suspicious circumstances

Question 10

When can a lack of proper intention arise for making a will?

Answer 10

Testator made the will as a result of fear, fraud, undue influence or mistake

Question 11

What is ‘duress’?

Answer 11

The testator has been injured or threatened with injury. A will made under duress will be admitted to probate only if the court pronounces that it is valid and issues a grant in solemn form.

Question 12

What does it mean to ‘propound a will’?

Answer 12

To take legal action to have a will authenticated as part of the probate process. If pronounced valid, the court will order the issue of a grant of probate.

Question 13

What is ‘undue influence’?

Answer 13

Something that overpowers the volition of the testator. Permissible to persuade a testator but not to coerce them. Undue influence requires coercion or pressure that overpowered the freedom of action of the testator.

Persuasion is not equal to coercion!

Question 14

What are the formalities for executing a will?

Answer 14

A valid will must be:

1) In writing
[written document]

2) Signed by the testator or by another person in the testator’s presence
[signed by testator]

3) Signed or acknowledged by the testator in the presence of two or more witnesses [testator signs in presence of 2 witnesses]

Question 15

What can be valid signatures in accordance with the testator’s intention?

Answer 15

Initials
Stamped signature
Mark such as a cross
Unfinished signature
Signature in pencil

Question 16

What is the witness rule when executing a will?

Answer 16

A beneficiary of a will (or their spouse) should not be a witness as this invalidates any legacy for their benefit

Question 17

What is an ‘attestation clause’?

Answer 17

Included at the end of the will to confirm that the conditions for a valid execution of a will have been satisfied. E.g. “signed by the testator in our presence and then by us in his”

Question 18

Can a document be incorporated into a will and if so, how can this be done?

Answer 18

Yes there can be incorporation by reference to a document. This is valid, provided that the document is:

• In existence at the date of execution of the will
• Referred to in the will as already existing
• Clearly identified in or identifiable from the will

Question 19

Can a will make reference to a future intention to make a document?

Answer 19

No, a future intention to make the document is not sufficient. It should be referred to in the will as already existing.

Question 20

What is a codicil?

Answer 20

A document that adds to, amends or partially revokes an existing will. Usually used for small changes to a will.

Question 21

What are the requirements for a valid codicil?

Answer 21

A valid codicil should:

1) Make reference to the will
2) Confirm the unamended part of the will
3) Follow the same requirements as the formalities for a valid will - capacity, knowledge and approval, lack of undue influence
4) Be executed properly

Question 22

What is meant by ‘republication’?

Answer 22

Execution of a codicil republishes the will it supplements with the result that the will is treated as made at the date of the codicil.

Question 23

How can a codicil save a gift to a witness who saw the previous will?

Answer 23

By having the codicil witnessed by independent witnesses - republication of a codicil witnessed by independent witnesses will save a gift to a witness of the original will who would otherwise be deprived of the gift