Capacity/Mind Of the Testator/rix Flashcards
Capacity formalities
Two Formalities
Age - 18 & Over (S7 Wills act 1837)
Have - Mental Capacity- as set out in Banks V Goodfellow and Mental Capacity Act 2005
Age
S7 Wills Act 1837 a person can make a will if aged 18 or over - unless capable of creating a privileged will
Mental Capacity standards
Mental Capacity Act 2005 sec 1,2 &3 and Banks V Goodfellow 1870
MCA 2005 Sec 1
1) A person is assumed to have capacity unless established that they lack it
2) A person is not to be treated as unable to make a decision merely because they have made an unwise decision
MCA 2005 Sec 2(1)
A person Lacks capacity in relation to a matter if at the material time they are unable to make a decision for themselves relating to the matter because of a impairment of or a disturbance in the functioning of the mind/brain.
MCA 2005 Sec 2 (3)
Lack of capacity can not be established just by reference to a persons age/condition or aspect of behavior which might led others to make unjustified assumptions about their capacity
MCA Sec 3 (1)
Provides that a person is unable to make a decision for themselves if he is unable to
a) Understand the information relevant to the decision ( Sound Mind)
b) retain the information( Sound Memory)
c) use or weigh that information as part of the process of making the decision ( Sound Understanding)
d) communicate there decision(whether by talking, using sign language or any other means (Reasonable Adjustments)
MCA Sec 3 (3)
The fact that a person is able to retain the information relevant to a decision for a short time only does not prevent then from being regarded as able to make a decision
Banks V Goodfellow - established test
Testator must understand
a) They are making a will to come into effect on their death and not some other document (Sound Mind)
b) The extent of their property (Sound Memory)
C) The moral claim on their property ( Sound Understanding)
Does MCA replace Banks V Goodfellow
No the MCA 2005 compliment rules set out in Banks V Goodfellow
Capacity - Burden of proof
Deemed to have capacity unless challenged - Burden falls to person challenging unless evidence to support then burden is reversed to prove there was capacity.
Understanding they are Making a will (Sound Mind)
Need to understand they are making a will to come into effect on their death as apposed to to another document
Understand the Extent of Property ( Sound Memory)
Must be able to recall the property they own, but need not be perfect recall or know precise values but must know if its of value
Understand Moral claims on their property (Sound Understanding)
No Requirement that the testator should have perfectly balanced mind just that they understand the consequences of the wishes - Will can be valid even if decision is unwise/mean/frivolous or motivated by malice
How is mental capacity is assessed after death
Evidence is obtained from family/friends/healthcare professionals and attendance notes of the person drafting the will. therefore results can vary.
Lucid Interval effect on capacity
Just because someone may have a mental illness does give rise to a presumption of lack of capacity it is well recognized that there are good days where a person may have capacity.
Insane Delusions
A belief in something no rational person would believe in, “if” such delusions have an influence of gifts made in a a will in must be fatal to its validity.
Capacity at execution of a will ( Signing)
If a will is executed at a different time to the instructions being given (normal in a professional drafted will) - Deemed that capacity is assumed if the will is professionally drafted. Parker V Feltgate 1883
Rules of Parker V Feltgate
1) T had capacity at the time of giving instructions
2) Will was prepared in accordance to those instructions
3) At the time of executing they were capable of understanding an did understand they were executing a will for which they had given previous instructions
If all meet deemed to have capacity
Burden of Proof - Legal Burden - capacity
The Executor (propounder) has the Legal burden of proof to establish capacity, However there are two rebuttable presumptions which affect the evidential burden
Capacity Rebuttable presumption 1 will rational
Rational Will - if the will appears rational -capacity is presumed - However if evidence is provided to the contra the burden falls to the propounder to prove there was capacity
Rebuttable presumption 2 general lack of capacity
Continuing mental state - If T did generally lack capacity - The Executor has to prove that T did have capacity by way of either recovery or that it was made during a lucid interval
Professionally Drafted Will presumption of capacity
Deemed strong evidence was required where a will is professionally drafted/executed and full evidential notes were kept regarding views on capacity.
Drafter has concerns re capacity - Precaustions
Recommendation to have client examined by a doctor who should prepare a written report and will; should be witnessed by a medically qualified person. Preparer should also keep a full detailed file note of the circumstances.
Golden Rule rules
Referring to the duties of practitioners in doubtful cases - In addition to obtaining medical evidence they should
1) Discuss any previous wills with the client and there reasons for wanting to change its terms
2) Take instructions in the absence of anyone who stands to benefit/or have some influence over the testator.
Golden Rule reminder
1) Ensure that any medical practitioner is properly briefed on the purpose of the repot and the report should make it clear what tests were applied along with their results.
2) Legal practitioner to keep detailed notes on observations - Detailed attendance notes are vital evidence
Intention to Make a will general rule
Must have the intention to make a will and intend that their wishes are to be put into effect after their death,
Testamentary Intention Valid
Can be held to have testamentary intention even if they do not appreciate that the document is capable of being admitted to probate in the English courts
Testamentary intention not valid
No Testamentary intention is held if the testator did not intend the execution to operate immediately
Knowledge and approval
T not only needs to have the intention to make a will but they must also have knowledge of the contents and the content must be their wishes.
Knowledge and Approval Rules of Guardhouse V Blackburn 1866
1 The court must be satisfied that T knew and approved the contents
2 On the face due execution indicates K&A unless there is evidence of Suspicious circumstances
3 T must intend the document to operate as a will- even if there was K&A of the contents not valid if not intended to take effect on death
4 Even if KA was valid evidence of fraud would render it invalid
Time and Knowledge and Approval
T must know and approve the contents at the time of execution -however if not it can still be valid if
1) T knew and approved the contents when they gave instructions
2) the will was prepared in accordance to those instructions
3) at the time of execution T understood they were executing a will that they had given the instructions on.
Burden of Proof - Suspicious Circumstances k&a
Challenger must prove T lacked K&A because of either a Mistake or undue influence/force/fear/fraud - any part this applies to can not be admitted to probate.
Normal Presumption of K& A
Presumption is that T had K&A - Burden on challenger to prove other wise
No Presumption of K&A
There is no presumption of KA if T is Blind/Illiterate or the will is signed by someone other than T on their behalf. Or other circumstances that excite the courts suspicions.
Overcoming no presumption of K&A reasonable adjustment
Affidavit evidence that T had K&A must include some overt act of acknowledgement or understanding on the part of T can be done by an amended attestation clause - IE Blind/illiterate T clause to include will was read out to them Attendance notes to indicate open questions asked and the responses recorded.
Mistake-forms
Mistake can be in many forms
Mistakes to the whole will
Mistakes to words used
Mistake by T -
Mistake by Draftsman -
Mistakes to the whole will - example
- signed by wrong person
Mistakes to words used -revocation
- revocation not intended
Mistake by T
failure to delete a printed clause - lack of K&A to that clause
Mistake by Draftsman
courts have powers to omit words where T did not have K&A of their inclusion/Statutory Power to order rectification (AJA S20(1) and to construe the will s if certain words had been inserted/omitted/changed if its clear from the will and error has been made
Statutory Powers to rectify
S20(1) Administration of Justice Act 1982 . Give the court a limited power to rectify will/codicils. If the court is satisfied that a will is so expressed that it fails to carry out t’s intentions as a result of a
1)clerical error
or
2) A failure of the drafter to understand instructions
They may order that the will be rectified so as to carry out t’s intentions
Rectification in preference of other courses of action
Where a mistake has been made by the draftsman a claim for negligence can be filed but rectification under s20 AJA should be attempted first
Force/Fear/Fraud/Undue influence result
A Will should be the testators wishes and any will made by fear/force/fraud or undue influence is not valid as it lacks proper knowledge and approval
Force or Fear effect of k&a
If will made out of force or fear it will fail as they lacked K&A
Fraud types
Types of Fraud include adding clauses before signing without T K&A
Forgery forged signature
deliberate misleading of T by making false representations about the character of others so as to include or exclude them
Deliberately misleading T as to the contents as its being read to them.
Undue Influence
Overpowering Ts free will
Presumption of undue influence
Undue influence will be presumed when gifts are made by vulnerable persons to another person who they had a relationship of trust whilst living - Ie Doctors/Solicitors but this can not be done in the case of gifts in wills as there needs to be actual evidence
Guidance for practitioners to avoid undue influence
Ensure person is able to get independent advice not in the presence of the person thought to be applying the pressure . If Independent advice is not sort/able to speak privately with client the practitioner should refuse to act.
Gifts to Solicitors and Members of their staff
Must adhere to SRA Standards and Regulations 2019
SRA 7 Principles and Cilex code of conduct 9 principles
Principle 2 act in a way that upholds public trust in the profession
Principle 3 - With independence
Principle 5 With integrity
Principle 7 in the best interest of each client
