2. Will Validity Flashcards
What is the primary focus of the element ‘WILL VALIDITY – CAPACITY’?
The requirements for making a valid will with a focus on testamentary capacity
Testamentary capacity refers to the mental ability of the testator to understand the nature of their actions when making a will.
What happens to a deceased person’s assets if they made a valid will?
The assets are distributed in accordance with the terms of the will
If the will is not valid or does not cover all assets, intestacy rules apply.
Define ‘testamentary freedom’.
The ability of a testator to leave their property to whomever they choose
This concept varies by jurisdiction; some require specific provisions for family members.
What is the minimum age requirement to make a valid will according to s7 Wills Act 1837?
18 years old
Exceptions apply for those in military service.
What are the four requirements for testamentary capacity as per Banks v Goodfellow?
- Understand the nature of the act and its effects
- Appreciate the extent of the property
- Understand moral claims to which they ought to give effect
- Have no disorder of the mind affecting their judgment
What does ‘nature of the act’ imply in testamentary capacity?
The testator must understand that they are signing a document that takes effect on death and disposes of their property
They are not required to understand every detail of the will.
What is required for a testator to demonstrate ‘extent of property’?
A general recollection of what they own and the approximate value of their estate
Perfect memory or knowledge of every item is not necessary.
What are ‘moral claims’ in the context of testamentary capacity?
The ability of the testator to appreciate anyone to whom they owe a moral responsibility
There is no requirement to leave anything to those for whom they feel moral responsibility.
What does ‘disorder of the mind’ refer to in testamentary capacity?
A condition preventing the testator from exercising their natural faculties in disposing of property
A testator may still have capacity if the delusion is unrelated to the terms of the will.
What is the timing requirement for testamentary capacity?
The testator must have testamentary capacity at the time the will is executed
Exceptions exist, such as in Parker v Felgate.
What is the ‘golden rule’ established in Kenward v Adams?
A medical practitioner should assess the capacity of a testator who is elderly or seriously ill
This is best practice, not a legal obligation.
Who bears the burden of proof regarding testamentary capacity?
The propounder of the will (usually the executor)
Capacity is presumed if the will appears rational and is duly executed.
What is the relationship between the Mental Capacity Act 2005 and testamentary capacity?
The statutory test was intended to align with the common law test for testamentary capacity but does not replace it
If the two tests yield different results, the common law test prevails.
What is a statutory will?
A will authorized by the court for an adult who lacks capacity to make one for themselves
The court must find it in the person’s best interests.
What is required for a testator’s knowledge and approval?
A general intention to make a testamentary document and specific intention to approve the particular will signed
They must understand and read their will.
What presumption exists regarding knowledge and approval of a will?
Knowledge and approval are presumed if the testator had testamentary capacity and the will was executed according to s 9 Wills Act 1837
This presumption can be rebutted if evidence raises doubt.
What is the significance of the attestation clause in relation to knowledge and approval?
It explains the circumstances under which the will was executed and may require an affidavit if presumption does not apply
It helps mitigate risks associated with proving knowledge and approval later.
What constitutes undue influence in the context of wills?
Coercion that leads a testator to make a will or include terms against their judgment and true intention
Undue influence is distinct from lawful persuasion.
What is the burden of proof for claims of undue influence?
The burden lies with the person alleging undue influence
Evidence must show facts are inconsistent with any other hypothesis.
What is the difference between testamentary dispositions and lifetime arrangements?
Testamentary dispositions refer to arrangements made through a will, while lifetime arrangements are made during the testator’s life.
Who bears the burden of proving undue influence in will contests?
The person making the allegation of undue influence.
What must be shown to prove undue influence?
Evidence must show that the facts are inconsistent with any other hypothesis.
What factors determine how much pressure can overbear a testator’s will?
The physical and mental strength of the testator.
Is the fairness of a testator’s will relevant in determining if they acted as a free agent?
No, the question is whether the testator acted as a free agent in executing the will.
What are the requirements for making a valid will according to the Wills Act 1837?
Testamentary capacity, knowledge and approval of the will’s contents, and compliance with s. 9 Wills Act 1837.
What is required for a testator to have testamentary capacity?
The testator must intend to make a will and know and approve of its contents.
Under what circumstances is knowledge and approval of a will not presumed?
- If the testator is blind
- If the testator is illiterate
- If someone signs on their behalf
- If there are suspicious circumstances.
What makes a will or a gift within it invalid?
If it was made as a result of undue influence.
What does undue influence require evidence of?
That the testator did not intend to make the will they signed.
What does s. 9 Wills Act 1837 specify about the validity of a will?
A will must be in writing, signed by the testator or by another person in their presence and by their direction.
What is the minimum age to make a valid will according to s. 7 Wills Act 1837?
18 years old, with exceptions for those in military service.
What constitutes ‘writing’ under s. 9 Wills Act 1837?
Includes handwritten and typed/printed text in any language.
What does ‘signed’ mean in the context of a valid will?
Any ‘mark’ may constitute a ‘signature’ if the testator intends it to be.
What is the role of witnesses in the execution of a will?
Witnesses must attest and sign the will in the presence of the testator.
What is required of witnesses according to s. 9 Wills Act 1837?
They must be physically and mentally present but do not need to know the will’s terms.
What happens if a beneficiary acts as a witness to a will?
The gift to the beneficiary is void under s. 15 Wills Act 1837.
What is an attestation clause?
It describes the circumstances under which the will was executed.
True or False: There is a legal obligation to include an attestation clause in a will.
False.
What must be noted about witnesses in case the will is challenged later?
The full name, addresses, and occupation of each witness.
What should be done if the will is executed under special circumstances?
The attestation clause should be amended to reflect these circumstances.
What is the effect of s. 15 Wills Act 1837 on the appointment of a witness as an executor?
The appointment remains effective even if s. 15 applies to deny them their inheritance.
Fill in the blank: To comply with s. 9 Wills Act 1837, the will must be in ______.
[writing].
