Capacity/Mind Of the Testator/rix

Question 1

Capacity formalities

Answer 1

Two Formalities
Age - 18 & Over (S7 Wills act 1837)
Have - Mental Capacity- as set out in Banks V Goodfellow and Mental Capacity Act 2005

Question 2

Age

Answer 2

S7 Wills Act 1837 a person can make a will if aged 18 or over - unless capable of creating a privileged will

Question 3

Mental Capacity standards

Answer 3

Mental Capacity Act 2005 sec 1,2 &3 and Banks V Goodfellow 1870

Question 4

MCA 2005 Sec 1

Answer 4

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

Question 5

MCA 2005 Sec 2(1)

Answer 5

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.

Question 6

MCA 2005 Sec 2 (3)

Answer 6

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

Question 7

MCA Sec 3 (1)

Answer 7

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)

Question 8

MCA Sec 3 (3)

Answer 8

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

Question 9

Banks V Goodfellow - established test

Answer 9

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)

Question 10

Does MCA replace Banks V Goodfellow

Answer 10

No the MCA 2005 compliment rules set out in Banks V Goodfellow

Question 11

Capacity - Burden of proof

Answer 11

Deemed to have capacity unless challenged - Burden falls to person challenging unless evidence to support then burden is reversed to prove there was capacity.

Question 12

Understanding they are Making a will (Sound Mind)

Answer 12

Need to understand they are making a will to come into effect on their death as apposed to to another document

Question 13

Understand the Extent of Property ( Sound Memory)

Answer 13

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

Question 14

Understand Moral claims on their property (Sound Understanding)

Answer 14

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

Question 15

How is mental capacity is assessed after death

Answer 15

Evidence is obtained from family/friends/healthcare professionals and attendance notes of the person drafting the will. therefore results can vary.

Question 16

Lucid Interval effect on capacity

Answer 16

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.

Question 17

Insane Delusions

Answer 17

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.

Question 18

Capacity at execution of a will ( Signing)

Answer 18

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

Question 19

Rules of Parker V Feltgate

Answer 19

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

Question 20

Burden of Proof - Legal Burden - capacity

Answer 20

The Executor (propounder) has the Legal burden of proof to establish capacity, However there are two rebuttable presumptions which affect the evidential burden

Question 21

Capacity Rebuttable presumption 1 will rational

Answer 21

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

Question 22

Rebuttable presumption 2 general lack of capacity

Answer 22

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

Question 23

Professionally Drafted Will presumption of capacity

Answer 23

Deemed strong evidence was required where a will is professionally drafted/executed and full evidential notes were kept regarding views on capacity.

Question 24

Drafter has concerns re capacity - Precaustions

Answer 24

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.

Question 25

Golden Rule rules

Answer 25

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.

Question 26

Golden Rule reminder

Answer 26

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

Question 27

Intention to Make a will general rule

Answer 27

Must have the intention to make a will and intend that their wishes are to be put into effect after their death,

Question 28

Testamentary Intention Valid

Answer 28

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

Question 29

Testamentary intention not valid

Answer 29

No Testamentary intention is held if the testator did not intend the execution to operate immediately

Question 30

Knowledge and approval

Answer 30

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.

Question 31

Knowledge and Approval Rules of Guardhouse V Blackburn 1866

Answer 31

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

Question 32

Time and Knowledge and Approval

Answer 32

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.

Question 33

Burden of Proof - Suspicious Circumstances k&a

Answer 33

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.

Question 34

Normal Presumption of K& A

Answer 34

Presumption is that T had K&A - Burden on challenger to prove other wise

Question 35

No Presumption of K&A

Answer 35

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.

Question 36

Overcoming no presumption of K&A reasonable adjustment

Answer 36

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.

Question 37

Mistake-forms

Answer 37

Mistake can be in many forms
Mistakes to the whole will
Mistakes to words used
Mistake by T -
Mistake by Draftsman -

Question 38

Mistakes to the whole will - example

Answer 38

• signed by wrong person

Question 39

Mistakes to words used -revocation

Answer 39

• revocation not intended

Question 40

Mistake by T

Answer 40

failure to delete a printed clause - lack of K&A to that clause

Question 41

Mistake by Draftsman

Answer 41

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

Question 42

Statutory Powers to rectify

Answer 42

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

Question 43

Rectification in preference of other courses of action

Answer 43

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

Question 44

Force/Fear/Fraud/Undue influence result

Answer 44

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

Question 45

Force or Fear effect of k&a

Answer 45

If will made out of force or fear it will fail as they lacked K&A

Question 46

Fraud types

Answer 46

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.

Question 47

Undue Influence

Answer 47

Overpowering Ts free will

Question 48

Presumption of undue influence

Answer 48

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

Question 49

Guidance for practitioners to avoid undue influence

Answer 49

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.

Question 50

Gifts to Solicitors and Members of their staff

Answer 50

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