2. Will Validity Flashcards
What are the 3 requirements of a valid will?
(1) CAPACITY
(2) INTENTION
(3) FORMALITIES (complied with)
What is the 2 part test of ‘Capacity’?
(1) Age 18 or over
AND
(2) Mental (Testamentary) Capacity
What case is the test for ‘Mental (Testamentary) Capacity’
Banks v Goodfellow
What are the 3 components of the ‘Banks v Goodfellow’ test of ‘Mental (Testamentary) Capacity’ ?
T undestands:
(a)(b)(c)
T understands:
(a) MAKING A WILL
(b) EXTENT OF THEIR PROPERTY
(c) MORAL CLAIMS on their estate (e.g. close family)
Mental capacity will be PRESUMED if 3 conditions are met?
(1) T capacity at time giving INSTRUCTIONS
(2) Will prepared ACCORDING TO INSTRUCTIONS
(3) T UNDERSTANDS SIGNING WILL made with THOSE INSTRUCTIONS
If a solicitor is faced with a person whose ‘Mental (Testamentary) Capacity’ fluctuates (e.g. age / illness)
(1) What is best practice for a solicitor to do. What are the 2 components of this?
(2) Will this make the will automatically valid?
(1) ‘Golden Rule’
(a) MEDICAL PROFESSIONAL assesses T’s mental capacity
(b) Produce WRITTEN REPORT
(2) NO but increases chances
For a Will to be valid, there must be ‘Intention’. What 2 components make this up and what do they mean?
(1) GENERAL Intention - make a will (compared to another document)
(2) SPECIFIC Intention - make this ‘particular will’
(1) What is the GENERAL rule on when ‘intention’ is PRESUMED in a will?
(2) What are the 3 exceptions to this?
(1) Capacity + Formalities (complied with)
(2) NOT presumed:
(a) Blind / Illiterate
(b) Signed person NOT Testator
(c) Suspicious circumstances
(1) What is the GENERAL rule whether a person who is ‘Blind’ / ‘Illiterate’ will have ‘Intention’ presumed?
(2) What is the exception to this?
(1) Intention NOT Presumed
(2) UNLESS - VALID ‘Attestation Clause’
What may be required to REBUT the Presumption of that a person who is
(a) ‘Blind’ / ‘Illiterate’
(b) Signed person NOT Testator
does NOT have ‘Intention’?
Affidavit of Knowledge
(1) What is the main grounds under which the PRESUMPTION of ‘Intention’ will be challenged?
(2) What is the standard for this?
(3) Who has the burden to prove this ground?
(4) Is it likely to be successful?
(1) Undue influence
(2) ‘More than persuasion’
(3) Burden on ‘person making the claim (of undue influence)
(4) Rarely successful
What piece of legislation governs the formalities of Wills?
S9 Wills Act 1837
What are the 5 formalities a Will must comply with under S9 Wills Act 1837?
(1) IN WRITING
(2) SIGNED BY TESTATOR OR THIRD PARTY in his (a) Presence and (b) Direction
(3) INTENTION (give effect to will)
(4) (Testator) (a) SIGNS OR (b) ACKNOWLEDGES SIGNATURE in front of min 2 Witnesses AT SAME TIME
(5) WITNESS (a) SIGNS OR (b) ACKNOWLEDGES SIGNATURE in front of TESTATOR
One formality a Will must comply with is that it is ‘in WRITING’. What type of writing will require further evidence?
Pencil
One formality a Will must comply with is that it is ‘SIGNED by (a) The Testator OR (b)…
(1) What is (b)?
(2) What are the 2 conditions for (b) to be valid?
(1) Third Party
(2)
(a) PRESENCE (of testator)
(b) DIRECTION (verbal, non-verbal)
