13.1: Validity of wills and codicils Flashcards
What are the components for a valid will?
The testator must have (T.I.E):
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 signed the will in accordance with certain formalities (s9 Wills Act 1837)
Testator must also be over 18 years old.
How is testamentary capacity assessed?
Testator must be aged 18 or over and have mental capacity. In accordance with MCA 2005 and Banks v Goodfellow test.
What is the capacity test under MCA 2005?
The Mental Capacity Act 2005 provides that a person lacks capacity if, at the material time, they are unable to make a decision for themselves in relation to the matter in question because of an impairment of, or disturbance in the functioning of, the mind or brain.
What is the Banks v Goodfellow test?
Common law test for mental capacity.
To have sufficient mental capacity, the testator must have understood at the time of execution of their will:
→ The nature of the act (they were making a will and its effects)
→ The extent of their property
→ The claims to which they ought to give effect
What is the exception to the rule of testamentary capacity?
Exception to testator lacking capacity at the date of executing the will
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.
How is intention proved in a will?
General intention to make a will +
Specific intention to make the particular will (known and approved the contents of the will - presumption of knowledge and approval)
What is the rebuttable presumption of knowledge and approval?
If the testator had the required mental capacity, it is presumed that they acted with the requisite knowledge and approval.
Exceptions:** Does not apply if testator is blind / illiterate / will signed on the testator’s behalf / suspicious circumstances
What is the Golden Rule in a will?
If a solicitor thinks there are any doubts about a testator’s capacity, they should:
- Get a report from a medical practitioner confirming the testator is fine;
- Ask a doctor to witness the will; and
- Make a file note that the solicitor believes the testator has capacity
What is the Pencil Rule in a will?
A will written in pencil (even if correctly executed) is assumed to be a draft, but this presumption can be rebutted
When is intention lacking in a will?
Testator made the will as a result of fear, fraud, undue influence or mistake. Will result in the will being set aside and not admitted to probate.
What is duress in the context of wills?
The testator has been injured or threatened with injury. Violates the principle that parties must enter / write wills voluntarily, and makes the will invalid. The threat which causes the duress can be physical threats to:
- The testator;
- Someone close to the testator;
- The testator’s property; or
- The testator’s economic / business interests
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.
What does it mean to propound a will?
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.
What is undue influence in the context of wills?
Something that overpowers the freedom of action of the testator. Permissible to persuade a testator but not to coerce them.
Arises where there is a special relationship between two parties or one based on trust and confidence and that relationship is abused.
Burden of proof is on the person alleging undue influence.
What should a solicitor do when there is evidence of undue influence in a wills situation?
Solicitors should ensure that the client receives impartial legal advice before they write the will where there is clearly some family influence over the will.
At the outset of the matter, the solicitor should make sure they see the testator on their own and receive clear instructions as to the content of the will.
What are the formalities for executing a will (s9 Wills Act 1837)?
1) In writing, not in pencil
[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]
4) Signed by each witness in the presence of the testator
[2 witnesses to sign]
What is the Witness Rule in a will?
A beneficiary of a will or their spouse should not be a witness as this invalidates any legacy for their benefit
What is an attestation clause?
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”.
Creates the presumption of valid execution.
How can documents be incorporated into a will?
Incorporating a document into a will can be valid provided that this 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
N.B: A future intention to make the document is not sufficient
What is a codicil?
A document that adds to, amends or partially revokes an existing will. Usually used for small changes to a will.
What are the requirements for executing a codicil?
1) Reference to will - clause inserted
2) Confirming unamended part of will - clause inserted
3) Requirements: Capacity, knowledge and approval, lack of undue influence
4) Valid execution - requirements for execution of a valid will apply equally to a valid codicil
What are the effects of executing a codicil?
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.
N.B: 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.
