C5: Technical Basics - Wills & Codicils

Question 1

Can a valid will be written on anything?

Answer 1

Hodson v Barnes (1983): A will written on an eggshell was declared valid.

(A will can be handwritten in pen or pencil and can be on any material provided that it is in writing.)

Question 2

Who is the “testator”?

Answer 2

The person who makes a will is called the “testator”.

Question 3

What are intestacy rules?

Answer 3

The strict rules which govern what happens if there is no will. Under those rules, persons may benefit against the wishes of the deceased. Very broadly, the intestacy rules follow the bloodline of the deceased.

Question 4

Explain five reasons why it is important for people to make a will.

Answer 4

1. it can specify the executors, who may be professionals
2. it can include wishes such as burial arrangements or organ donation
3. gifts of specific items can be included – for example, family heirlooms
4. guardians for children can be specified
5. it can include thanks and gifts for kindness shown during life as well as gifts to charities.

Question 5

What is a “joint tenancy”?

Answer 5

Joint tenancy means that if one of the owners dies, the assets passes immediately and outright into the sole name of the surviving owner. It therefore:
doesn’t pass to their personal representatives or under the will and;
doesn’t count towards any gift left to the surviving owner in the will.

Question 6

What are tenants in common?

Answer 6

Tenants in common only applies to ownership of land and means that their shares will form part of their estate on death, so will pass under their will or intestacy.

Question 7

Which of the following means the deceased’s share will still be part of the estate for inheritance tax purposes after they die?

Joint tenants
Tenants in common

Answer 7

Both, whatever happens, the share will still be included in the estate for inheritance tax purposes.

Question 8

Identify six characteristics of a will.

Answer 8

1) it covers the disposition of property and other arrangements;

2) it is a declaration of intent;

3) it must be in a prescribed form (with some exceptions);

4) it can always be revoked (cancelled);

5) it takes effect on death;

6) (if properly written) it will dispose of the testator’s entire estate as at the date of death, including assets acquired by the testator after execution (i.e. signing).

Question 9

What is a “codicil”?

Answer 9

A codicil is a document prepared and signed in accordance with the same rules as the will that makes some minor alteration to the terms of the original will, e.g. adding a beneficiary or replacing an executor. It must be stored with the original will if possible.

Question 10

How many codicils can there be?

Answer 10

Although more than one codicil can be executed, any major changes to a will requires an entirely new will.

Question 11

What are the four legal formalities for a valid will under s9 Wills Act 1837? Explain each one.

Answer 11

1. it is in writing, and signed by the testator, or by some other person in his presence and by his direction; (handwritten is fine, see Hodson v Barnes [1926] for eggshell example. Pencil alterations to a typed/inked will would look like deliberation, so wouldn’t be accepted.)
2. it appears that the testator intended by his signature to give effect to the will; (however, see Marley v Rawlings [2014] where husband and wife signed each other’s wills, court used ‘rectification’ to amend the will to reflect what was meant.)
3. the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
4. each witness either:
   - attests and signs the will;
   - or acknowledges his signature,

in the presence of the testator (but not necessarily in the presence of any other witness), but no form of attestation shall be necessary.

Question 12

Describe a case when a will was invalid when signed by another person when the testator was too physically weak to sign themselves. Barrett v Bem and Others [2012]

Answer 12

If the testator is physically too weak to sign the will, they can ask someone else to do it on their behalf, provided that the testator and the person signing are in the room together at the same time.

Barrett v Bem and Others [2012] dealt with a will being signed on behalf of the testator. The testator (who was very infirm) attempted to sign the will himself, but his hand was shaking too much and he was unable to do so. The sole beneficiary, Anne, was present with the witnesses and she intervened, taking the pen and signing on the testator’s behalf.

The fact that the person signing on the testator’s behalf was a beneficiary was not the problem (although it was, of course, undesirable). The court couldn’t verify that the testator had asked her to sign on his behalf - he was passive in the signing. Looking at the facts of the case, the court found: “There is no finding here … that [the testator] asked Anne to step in and sign the will; or that Anne asked him whether she should sign the will before she ‘stepped in’”. The will was held invalid on the ground of lack of proper execution.

Question 13

What is an “attestation clause”? Is there a required format?

Answer 13

The purpose of an attestation clause is to describe the process by which the will was signed, and to make it clear that it followed the requirements of s9 WA 1837. If an attestation clause is included, the presumption of ‘due execution’ will apply. If an attestation clause is not included, it won’t make it invalid, but it may be necessary for a witness to swear an affidavit of due execution confirming that the correct formalities of signature by testator and witnesses were followed.

Common attestation clause:

Signed by [testator] in our joint presence and then by us in his/her presence and in the presence of each other.

Witness 1 (name, address, occupation)
Witness 2 (name, address, occupation)

Question 14

Does the testator’s signature need to be at the end of a will? Which Act is relevant here?

Answer 14

The Administration of Justice Act 1982 (AJA 1982) changed the requirement for a testator’s signature to be at the bottom of the will to having the signature anywhere on the will, as long as the testator intends their signature to give effect to the will.

Wood v Smith [1991] held that a handwritten will made two days before death was valid because it commenced with the words ‘My will by Peter Winterborne’. It was not signed at the end, but the writing of the name and disposition were all one operation.

Question 15

Is a cross or thumbprint acceptable when signing a will?

Answer 15

If the testator is unable to write, it is sufficient for them to make their mark — for example, a cross or a thumb print. If there is likely to be any doubt in the future as to the way in which the will was signed, the legal adviser should ask for the witnesses (such as a doctor if the testator is weak) to prepare an affidavit confirming the circumstances of the signing.

Question 16

What is a “privileged” will under s11 WA 1837? In what circumstances will these be permitted?

Answer 16

Privileged wills are made by people aged 14 or over, who are in the actual military service or are sailors at seas without complying with the usual formalities (s11 WA 1827).

Privileged wills enable persons over the age of 14 in military emergencies or at war to make a valid will without complying with all the formal requirements usually imposed (s11 WA 1827). The law recognises that these people, as a matter of public policy, should be allowed to make wills which can be oral and, if in writing, need not be witnessed.

These wills remain valid after the emergency or hostilities have finished. In Re Booth [1926], for example, a privileged will made by the testator while on actual military service in 1882 was held to be valid after his death in 1924.

Question 17

What are the requirements for witnesses under s15 WA 1837?

Answer 17

Witnesses must:
- be competent, i.e. not mentally disordered or blind
- see the testator sign and then sign in the presence of the testator.
-sign after the testator has signed, not before.

If these criteria are not fulfilled, the will is invalid.

Question 18

Does a signature mean a signature or can someone just write their name out?

Answer 18

It does not have to be the witnesses’ unique personal marks. It is sufficient for a witness to write his or her name with the intention of attesting the will. This point was discussed in Re Payne [2018], in which the witnesses wrote out their names in capital letters. The will was held to be valid.

Question 19

What happens when witnesses are not at the signing of a will? Is it still valid? Use a case to explain.

Answer 19

In Re Whelen [2015] the testatrix wrote out a home-made will, signed it, and handed it to a friend, who had also written a will. The friend then took both wills to two colleagues for witnessing. The witnesses added their signatures to both wills, but because the sheets of paper on which the wills were written were stacked one on top of another the witnesses did not realise that they were witnessing two separate documents.
Following the testatrix’s death, her will was held invalid because the witnesses had not been present when she had signed, it, and she had not been present when they added their signatures. The fact that they did not know they were witnessing her will was not relevant.

Question 20

Is there a requirement for both witnesses to sign in each other’s presence?

Answer 20

There is no requirement that both witnesses sign in each other’s presence, although this is best practice.

Question 21

What happens if a beneficiary to the will signs as a witness?

Answer 21

The will is still valid, but the beneficiary cannot receive their gift under the will. The only exception is if two other witnesses signed the will as well as the beneficiary, as the beneficiary’s signature will then just be ignored.

Question 22

Do the witnesses need to know the contents of the will?

Answer 22

No, they do not.

Question 23

Can an executor witness the will?

Answer 23

Yes, although executors often benefit under the will, so it is best if they don’t act as a witness.

Question 24

What temporary measures have been put in place regarding the signature of wills during the Covid pandemic?

Answer 24

According to an amendment to WA 1837, wills made from 31 January 2020 included video conferencing as a way of witnessing the signing of a will. Exceptions are when a grant of probate has already been issued or the application is already in process. It extends currently until 31 January 2024, but can be lengthened or shortened.

Question 25

What is a “testamentary gift”?

Answer 25

A gift given in a will.

Question 26

From when does a will “speak”? What is meant by this expression?

Answer 26

A will ‘speaks’ as if it had been executed immediately before the death of the testator. The exception to this is when referring to beneficiaries.

Question 27

In relation to beneficiaries, from when will they assume to exist? At the date of the will or on death?

Answer 27

With regard to beneficiaries, the will is to be read as referring to the people who fit the relevant descriptions as at the date of the will, not the date of death, e.g. my neighbour at 2 Wood Green Road will be the person living there at the date of the will.

It is worth noting that, in practical terms, the rule regarding beneficiaries is most likely to be relevant with reference to children of the testator (or testatrix) – if the will says “I leave each of my children £10,000”, and a later son is born after the will is made, he would not benefit under this gift. (If, as is usual, the will said “I leave each of my children living at the date of my death the sum of £10,000” then, of course, the later child would be included.)

Question 28

In relation to a will, what is the difference between “real” and “personal” property?

Answer 28

Real property consists of immovable property such as land and houses. The freehold estate in land is therefore real property. A gift of “land” includes freehold land only (i.e. not leasehold land). Everything other than freehold land is called personal property and includes, for example, the leasehold estate, cars or jewellery.

Question 29

What is the difference between a “devise” and a “bequest/legacy”?

Answer 29

A gift in a will of freehold land is called a “devise”. A gift of personal property is called a “bequest” or a “legacy”.

Question 30

What is the meaning of a specific legacy?

Answer 30

This is a gift of a particular thing which is identified as belonging to the testator: it must be clearly described in the will – for example, “I give my three-stone diamond engagement ring” or “I give my Picasso painting”.

Question 31

What is the meaning of a general legacy?

Answer 31

This is a gift of an unspecified item. It is a gift of property which is not distinguished from other property of the same type, or a gift of an item which the testator may or may not possess at the date of death but which could be purchased to fulfil the gift – for example, “I give a car” or “I give a horse”. It is rare for a testator to make a gift like this deliberately – they are more likely to arise from poor will-drafting.

Note that a precise definition does not necessarily make a gift “specific”. A gift of “a bottle of Chateau Latour 1982 wine” would be a general gift, whereas a gift of “my wine” would be specific; if, at the date of death, the testator did not own any Latour 1982 wine, the executors would have to buy a bottle for the beneficiary.

Question 32

What is the meaning of a demonstrative legacy?

Answer 32

A demonstrative legacy is a gift of a general nature which is to be paid out of a specified fund rather than out of the general estate – for example, “I give £1,000 from my Barclays Bank account to …”. If the specified fund is inadequate to meet the legacy (e.g. because the Barclays Bank account at the date of death contains only £700), the balance of the legacy must be met from the residue of the estate. Again, these gifts are rarely created on purpose.

Question 33

What is the meaning of a residuary legacy?

Answer 33

The part of the estate that is left once all debts have been paid and all other gifts have been distributed is called the residuary estate or residue and is often referred to in the will as “my residuary estate”. Testators often leave a few small gifts to named individuals or charities. They usually leave the residuary estate to one person such as a spouse, and to children or grandchildren if the spouse dies before the testator. The gift of the residuary estate is often the largest gift to be made in the will. Every will should include a clause dealing with the residue. A legal adviser who fails to include such a clause is likely to be professionally negligent.

Question 34

What are the four types of legacy?

Answer 34

Specific legacy

General legacy

Demonstrative legacy

Residuary legacy

Question 35

What is a pecuniary legacy?

Answer 35

A pecuniary legacy is a general legacy which is a gift of money out of the general estate – for example, “I give £1,000 to Adiba”.

Question 36

What two types of trust may come out of a will?

Answer 36

There is scope here for confusion, not least on the part of testators who are surprised to find reference to a trust lurking in their gift of residue. It is important to distinguish between:

(a) a transitory and, in practical terms, usually inconsequential trust of residue through which the estate fleetingly passes on its way to the beneficiaries; and

(b) a full-blown trust which the testator might want to set up in which, for example, the residue might need to be held if they die while their children are still minors.

If (b) applies, consideration should be given to inserting clauses into the will which extend the trustees’ powers in running the trust, such as how they invest the trust assets.

Question 37

In relation to gifts to children, what is the difference between a “contingent” and “vested” gift?

Answer 37

A contingent gift is one that is subject to a precondition which must be met before the named beneficiary can inherit the gift. A typical contingency might specify that the beneficiary must reach a certain age before they can take the property. The use of the phrase “provided that” usually indicates a contingency. The contingency does not have to relate to age (though it almost always does), but could relate to other events, such as passing a driving test.

E.g. “I leave £1,000 to Paul Fisher provided that he attains the age of 18 years”. If Paul Fisher dies at 15; he will not inherit the £1,000 because the contingency has not been fulfilled. The £1,000 will not pass into Paul’s estate. Unless the will says otherwise, the £1,000 will simply be added to the residuary estate.

A vested gift is one without any precondition, so the property that is the subject matter of the gift will vest in the beneficiary (i.e. they will become entitled to it outright) provided they survive the testator (or testatrix). A person who is under the age of 18 when they inherit under a will cannot actually take the property until they reach 18 (because, as a minor, they cannot give a valid receipt for it). If they die before reaching 18, the gift will pass to the infant’s estate.

Question 38

What is abatement?

Answer 38

The process of deciding which gifts should be paid and which should not.

Question 39

What is ademption?

Answer 39

Ademption means that a specific gift will fail if the subject matter of the gift no longer forms part of the testator’s estate at the date of their death. It applies only to specific gifts: it does not apply to general legacies.

Question 40

What is the difference between abatement and ademption?

Answer 40

Abatement = process of deciding which gifts should be paid and which should not. Happens to residual first, then general gifts and finally specific gifts.

Ademption = only for SPECIFIC gifts, the gift will fail if the subject matter of the gift no longer forms part of the estate at the date of death. Not relevant to general gifts.

Question 41

What is “ademption” and in relation to which type of gift does it apply?

Answer 41

Ademption can occur also when the specific gift referred to in the will has been destroyed or lost before the testator’s death. In Durrant v Friend [1852], there was a gift of personal effects which were lost when the testator drowned at sea: the gift failed; it adeemed.
The doctrine of ademption can be very harsh if a specific devise (gift) of freehold land is involved. The gift of a specific property will adeem if the land is no longer owned at the date of the testator’s death.

Question 42

Does ademption apply to specific gifts or general legacies?

Answer 42

It applies only to specific gifts: it does not apply to general legacies. The estate will have to purchase the general gift referred to in the will if it is not owned at the date of death.

Question 43

When will a gift lapse?

Answer 43

“Lapse” refers to the status of the beneficiary at the date of death, irrespective of the type of gift to that beneficiary. Normally any gift will lapse (fail) if the beneficiary dies before (predeceases) the testator, because a will is effective only when the testator dies. Until that time, the beneficiary has no interest in the property and cannot benefit under the will if they predecease the testator.

For example, John Jones makes his will in 1992 and includes the following clause:
“I give my mahogany dining room table to Bob Brown”.
Bob Brown dies in 1994 and John Jones dies in 2020. As Bob has predeceased John, the gift to Bob lapses and the table becomes part of the residuary estate.

Question 44

What is the exception of a lapse under s33 WA 1837?

Answer 44

s33 WA 1837 (as amended) provides an exception to the general rule of lapse. A gift can be saved where the beneficiary named in the will is a child or remoter direct descendant (such as a grandchild) who predeceases the testator but has children (or grandchildren or great-grandchildren) of their own living at the date of the testator’s death. The children (or grandchildren or great-grandchildren) will inherit the gift due to the predeceased beneficiary (if there is more than one child, they will take a gift in equal shares). s33 applies only to issue (direct descendants) of the testator (or testatrix) and only in the absence of a contrary intention shown in the will.

Distributions under s33 are made per stirpes. This means that each child takes the share of the estate which their parent would have taken if the parent had survived. If a beneficiary left more than one child, those children would take that share equally. If one of those children had also died before the original testator but left children, then those children would take their deceased parent’s share.

Question 45

Keith leaves the residue of his estate to “my children in equal shares”. He had three children, namely Lee, Mary and Nina. Lee is still alive; Mary died some years ago, leaving two children, Polly and Quentin. Nina also died before Keith, leaving her children, Russell, Sam and Toby. How is the estate divided?

Answer 45

(1) Lee takes his share;
(2) Mary’s share goes to Polly and Quentin; and
(3) Nina’s share goes to Russell, Sam and Toby.
Note that Polly and Quentin get one-sixth of the estate each (half of Mary’s share), but Russell, Sam and Toby only get one-ninth each. The five grandchildren do not get equal shares.

Question 46

What are “administrative clauses”? How are they incorporated into wills?

Answer 46

The Trustee Act 1925 (TA 1925) and the Trustee Act 2000 (TA 2000) lay down a series of rules about the extent of the powers of executors. (Executors are usually referred to as “trustees” in wills since they hold estate assets on trust under the terms of the will, but for most practical purposes the distinction between trustees and executors (or other types of personal representative (PR)) can be ignored.)

The difficulty with simply relying on the provisions of these Acts is that in many cases the rules imposed are bureaucratic and generally too restrictive to reflect the wishes of testators, who, after all, are appointing executors whom they trust.

Clients are often horrified to read long wordy administrative clauses in their draft wills, and many firms avoid this reaction by incorporating (including) the STEP Standard Provisions into all their wills with a short phrase such as “The standard provisions of the Society of Trust and Estate Practitioners (2nd edition) shall apply”.

Question 47

What are the STEP provisions?

Answer 47

The STEP Standard Provisions exist in order to cut down long wordy administrative clauses in a will, to do with the rules about the extent of the powers of executors from TA 1925 and TA 2000.

Question 48

Who can be an “executor” of a will?

Answer 48

An executor must be over the age of 18 and must be physically and mentally capable of managing their own affairs. There are very few rules restricting who may be appointed as an executor, and insolvency or a criminal record are not automatic bars to obtaining probate. A person will not be appointed as an executor if they are “unfit” to act. In Re S’s Estate [1968] the court held that a woman who was serving a prison sentence for her husband’s manslaughter could not act as the executrix of his estate.

Question 49

What is the chain of representation when an executor dies post grant but before administration of the estate?

Answer 49

s7(1) AEA 1925 creates a chain of representation by the automatic transfer of the office of executor on the death of the original executor (often described as “proving executor to proving executor”).

The executor of that person’s estate (E) will take on the role for both estates, the original one (A) as well as the person’s estate (B). E would have originally just done B, but also now does A.

Question 50

What is the chain of representation broken by? (3 things)

Answer 50

• an executor dying intestate;
• a testator failing to appoint an executor in a will; and
• a sole executor failing to accept the office.

Question 51

What are the requirements of a testator to make a valid will? (4 things)

Answer 51

• The testator must be over 18 years old
• The testator must have sufficient mental capacity
• The testator must have the necessary intention
• The proper legal formalities must be met

Question 52

Does a legal advisor owes a duty of care to the testator AND to the beneficiaries?

Answer 52

Yes - White v Jones [1995]

That a legal advisor owes a duty of care not only to the testator but also to the beneficiaries.

Question 53

What is mental capacity and how does it relate to the making of a will?

Answer 53

Mental capacity is being able to make your own decisions. When making a will, the testator must have sufficient mental capacity in order to make a valid will.

Question 54

What are the three requirements for capacity to make a will, under Banks v Goodfellow [1870]?

Answer 54

The three requirements of Banks v Goodfellow [1870] are that testators must be able to understand:

1) the nature of the act (i.e. that they are making a will) and its results

2) the extent of their assets (though not necessarily the precise value of everything they own)

3) any moral claims against their estate which they ought to consider (i.e. be aware of the people for whom they are morally bound to provide. Note that they do not have to provide for those people; they merely have to be able to understand their obligations.)

ALSO: They must be free from any insane delusions - e.g. It is fine if they think the earth is flat; it is a problem if they cut a child out of their will because they think, wrongly, that the child is trying to murder them.

Question 55

How are the three criteria for capacity in Banks v Goodfellow [1870] expanded by the Mental Capacity Act 2005?

Answer 55

s1(2): a person is presumed to have capacity unless it is established that they do not (burden of proof).

s2(1): a person lacks capacity if he is unable to make a decision for himself … because of an impairment of, or a disturbance in the functioning of, the mind or brain.

s3(1): a person is unable to make a decision for himself if he is unable;

a) to understand the information relevant to the decision;
b) to retain that information;
c) to use or weigh that information as part of the process of making the decision; or
d) to communicate his decision (whether by talking, using sign language or any other means).

Question 56

Which is the preferred approach currently, Banks v Goodfellow [1870] or MCA 2005? Give case examples.

Answer 56

As these two approaches are clearly not identical, the courts decided that Banks v Goodfellow [1870] should be followed.

This first happened in Scammell v Farmer [2008], a case which turned on the testatrix’s mental capacity. The judge decided that Banks v Goodfellow should be followed. This was because:
- the testatrix had died in 2003, that is, before MCA 2005 came into force; and
- the judge believed that MCA 2005 was intended to supplement Banks v Goodfellow, not to replace it.

This basic approach has been applied in subsequent cases:
- Re Walker [2014], judge was initially unclear about relationship between Banks and MCA 2005, but agreed that Banks should prevail.
- James v James [2018], judge said that Banks is authority and spans back far longer than MCA.

Question 57

What does function-specific mean in the MCA 2005? Then explain this in terms of A, B & C v X, Y & Z [2012].

Answer 57

This means that a person may have capacity to do some things, but not others.

In A, B & C v X, Y & Z [2012] an elderly widower announced to his children that he had decided to marry his full-time carer. This did not please the children. He also said he intended to make a new will, benefiting the carer. This did not please the children either. The children doubted that their father had the necessary mental capacity for these decisions. The court ruled that the marriage was none of their business and the will would be open to challenge if it lacked ‘contemporary medical evidence asserting capacity’.

Question 58

Give an example of a case where the solicitor preparing the will was ‘incurious’ and therefore the will was made void?

Answer 58

In Re Ashkettle [2013] the testatrix made a will in 1986 leaving her estate equally to her daughter and her two sons; in 1999 she made a new will leaving her entire estate to her daughter. Following her death, the sons claimed that she lacked capacity when the 1999 will was made.

The court heard that, by late 1998, the testatrix had become “unable to communicate in any meaningful way, though she might have retained a sufficient ‘social façade’ to mask her mental confusion from an incurious person”. Note the word “incurious”.

Unfortunately, the solicitor who prepared the 1999 will had either not made a file or, if he had made one, it was now lost or destroyed. There was therefore no evidence available to the court regarding capacity taken at the time the will was made.

The court found that the terms of the will made no sense, and there was no proper support or explanation (such as file notes or medical evidence) for its terms. The will was held invalid, and the 1986 will was to be submitted to probate instead.

Question 59

What is the presumption of capacity in ordinary and usual circumstances?

Answer 59

If the will appears rational and is made in ‘normal’ circumstances, the capacity of the testator is presumed. If the person opposing the will proves lack of capacity, then the burden will go to the beneficiary of the will to prove that the deceased did have mental capacity at the time of the making of the will (following Banks v Goodfellow).

Question 60

When should medical evidence be sought when assessing the testator’s capacity?

Answer 60

Medical evidence should be sought when capacity is in doubt (referred to as the golden rule). See Key v Key [2010], where a solicitor’s failure to arrange for the testator to be medically examined was held to have greatly increased the difficulties in the case. The testator was an 89-year-old widower whose wife had died only a week earlier. The effects of bereavement were likened to those of depression and could therefore lead to loss of capacity.

Question 61

When would a solicitor be liable for negligence when creating a will?

Answer 61

In Charles v Fraser [2010] - solicitor had obtained a consultant psychiatrist’s opinion which judged that the testatrix had sufficient capacity, he did not review her earlier will. If he had done so, this would surely have led to further investigations. The earlier will was upheld.

In Hooper v Fynmores (a Firm) [2001], a solicitor was held to be negligent for not preparing a will quickly enough before a client died. Care staff will often be unwilling to act as witnesses. It is essential to make a clear file note of exactly what has been done in these cases as file will be the only evidence of advice given once a client has died.

See also Re Ashkettle (2013) - solicitor too incurious to get mental capacity assessment or make good enough file notes. Earlier will was upheld.

Question 62

What is the difference between the Mental Capacity Act 2005 and Banks v Goodfellow [1870]?

Answer 62

The burden of proof and the testator’s understanding.

Burden of proof:
- The MCA 2005 assumes that the person in question has capacity, unless proved otherwise. Burden of proof on the claimant.
- Banks v Goodfellow only needs to raise ‘real doubt’ about the testamentary capacity for the burden of proof to move to the defendant, who must then prove that the testator had the necessary capacity.

Testator’s understanding:
- The MCA 2005 requires the testator to be able to understand all the information relevant to the decision.
- Banks v Goodfellow only requires them to understand the nature of making the will, the extent of their property and should consider any moral claims on their estate.

Question 63

What are the rules in relation to testators who are blind, illiterate or unable to sign a will?

Answer 63

Such people can make a will, but extra steps have to be taken by the legal adviser to show that the testator had the necessary knowledge and approval. The will must be read out (read over) to the testator and the signature clause (attestation clause – given earlier) must be adapted to show that this was done before signature.

Question 64

What is intention when making a will?

Answer 64

Intention is usually assumed in normal cases when the testator has the necessary knowledge and approval when the will is executed. This is established if they knew of and approved the instructions given for the preparation of the will.

Question 65

When will intention not be presumed?

Answer 65

Intention will not be presumed in the following cases:

(1) If the testator is blind or illiterate

(2) If another signs on behalf of the testator

(3) If there are suspicious circumstances

Affidavit evidence could also be produced to establish intention in circumstances of doubt.

Question 66

What are the rules in relation to when another signs on behalf of the testator?

Answer 66

The attestation clause must be amended, to state that the will was read out to the testator, and that the testator understood and approved it.

Question 67

What are the rules in relation to when there are suspicious circumstances?

Answer 67

If a legal adviser prepares a will and the entire estate is left to the adviser, the testator would not be presumed to have the necessary intention. If a client does want to leave a gift in their will to their legal adviser, this is acceptable, but it must usually be a reasonable sum in the context of the value of the entire estate. In practice, it may be better to send the client to another firm to make the will.

Question 68

Identify four ways in which a will may be revoked.

Answer 68

A will may be revoked by:

• Marriage or civil partnership (this is automatic)
• Another will or codicil
• Destruction
• A properly executed declaration by the testator

Question 69

When revoking a will, which of the following are automatic (outlined in s18 Wills Act 1827) and which are governed by s20 Wills Act 1827?
Marriage or civil partnership
Another will or codicil
Destruction
A properly executed declaration by the testator

Answer 69

Automatic (found in s18 WA 1827):
Marriage or civil partnership

s20 WA 1827:
Another will or codicil
Destruction
A properly executed declaration by the testator

Question 70

How can the rule of automatic revocation of a will when entering into marriage or civil partnership be avoided?

Answer 70

This rule is avoided if the will is made “in expectation of marriage/civil partnership” (“contemplation of marriage/civil partnership”) under s18(3) WA 1837.

• The will must state that the testator expects to be married to/in a civil partnership with a named person and that they do not intend their will to be revoked by the marriage/civil partnership to that named person.
• A general intention to marry (or form a civil partnership) in the will is not sufficient. In Sallis v Jones [1936] the testator said that “this will is made in contemplation of marriage”. It was held that this was not explicit enough, and the will was not saved from revocation by a later marriage.

Question 71

Would a will be revoked if a marriage ended in divorce?

Answer 71

If a marriage ends, the former spouse will be considered dead on the date of the divorce. So, if they were a trustee, they are considered not to be around to do the work, or if there was a gift to them, that gift will pass down to the other beneficiaries as if the former spouse had died.

The will won’t be revoked, because other provisions will remain in effect.

Question 72

When would a later will revoke an earlier will?

Answer 72

An express revocation clause will revoke any earlier wills ‘… and I hereby revoke all wills and testamentary dispositions made by me.’ (testamentary dispositions include codicils)

Even if there is no express revocation clause, the later will revokes an earlier will to the extent that it is inconsistent with it.

Question 73

How can you revoke a will by destruction? What if it is lost?

Answer 73

s20 WA 1837 defines destruction as burning, tearing or otherwise destroying the same.

• The testator must have intention to revoke the will and must either destroy it themselves or direct another to do it in their presence.
• If a will is lost and it was last known to be in the possession of the testator, it is presumed that they destroyed it. This is a rebuttable presumption.

E.g. telephone call to destroy a will is not sufficient.

Question 74

What if a will is destroyed accidentally (i.e. drunk or unsound of mind)?

Answer 74

If a will is destroyed whilst drunk or of unsound mind, then it is not revoked (it must include intention).

Question 75

How can a will that has been accidentally destroyed be proved at the Probate Registry?

Answer 75

The answer depends on whether there is any evidence as to the contents of the original will available to the PRs. A copy of the will may suffice together with affidavits in support. The Probate Registry is very strict about the evidence that it will accept, so obtaining probate in such circumstances is likely to be slower and more expensive.

The Probate Registry will also raise queries if a will is produced which looks as though the testator has tried to damage it or destroy it – for example, if it has burn marks on it. An affidavit of plight and condition will be required to explain how the will came to be in its present state.

Question 76

Which case shows the vital importance of the intent to destroy a will?

Answer 76

Cheese v Lovejoy [1877]. The testator made his will. He later drew his pen through some lines of his will and wrote on the back of it “All these are revoked”. He then threw the will into a heap of waste paper in the presence of his maid. The maid retrieved the will. The court held that the testator’s acts were not enough to revoke the will on the ground of lack of intent, and James LJ said:

“All the destroying in the world without intention will not revoke a will, nor all the intention in the world without destroying: there must be the two”.

This case has been criticised. The court accepted the view that because the testator’s acts had not actually “injured” the will, there was no destruction. It is likely, however, that the testator thought that he had destroyed the will. No change to this area of the law has been recommended, primarily because such cases are thought to be rare, but it is important for a testator to ensure that he totally destroys the will to be sure of revocation by destruction.

Question 77

When can a will be revoked by a properly executed declaration by the testator? Provide a case example.

Answer 77

s20 WA 1837 provides that a will may be revoked by some writing so long as it declares an intention to revoke the will. The writing must be signed in accordance with the same formalities required to make a valid will – that is, it must be signed in the presence of witnesses.

In Re Spracklan’s Estate [1938] the testatrix dictated a letter while she was seriously ill, which was executed in the same way as a will. It instructed her bank manager to “destroy the will already made out” which was deposited at his bank. The court held that the will was revoked by this letter.

Question 78

When would a testator not be able to revoke their will?

Answer 78

A testator who becomes of unsound mind loses their capacity to revoke a will until legal capacity is regained.