Chapter 1: Essential requirements for a valid will Flashcards
What are the 3 elements for a valid will?
Formalities
Testamentary capacity
Intention (knowledge/ approval)
what happens if a will is not valid?
will not be admitted to probate
which act sets out the 3 elements?
S9 Wills Act 1837
what is due execution
correct execution
What are the 4 components of a valid will?
Comply will all rules on formality
Clear testator had mental capacity
Clear testator knew what was in the will
Testator intended to make these arrangements
what if a will is written in pencil?
must be further evidence the testator intended wiring in pencil to be final.
does it need to be a signature?
NO - Can make mark - thumbprint, X, rubber stamp. Can be incomplete signature/ initials (intention is key
what happens if the signature is not at the end of the will?
will only be valid if all the provisions and signature were written AT THE SAME TIME).
What is the requirement for presence of a witness?
2 or more
present at the same time when signature is made/ acknowledged by the testator
what is the requirement for the signature of witnesses?
witnesses and signs the will or
Acknowledges signature in the presence of the testator
When do the s9 formalities NOT apply
privileged wills - made by armed forces/ sailors at sea
what is the presumption of due execution?
attestation clause included = will is presumed to comply with S9 Wills Act 1837 formailities (can be challenged) .
What happens if there is not an attestation clause?
evidence e.g statement from both witnesses setting out circumstances they witnessed the will.
when must an attestation clause be added?
blind/ illiterate testators
what are the formal requirements for blind/ illiterate testators?
The will was read aloud
In the presence of witnesses
Testator confirmed understood contents
Signed (or someone signed on their behalf)
Witnesses attested the will in the standard way (s9)
what happens if a will is not dated?
Must be evidence to prove date of execution (signed)
what is testamentary capacity
mental ability to make a will
what does Parker v Felagate outline?
If there was capacity when instructions were given + if the will was prepared in accordance with instructions = sufficient capacity on execution/ completion to be valid.
what must a person with a metal/ degenerative illness understand for testamentary capacity to be valid?
must understand it is a will they are signing
what is the Banks V Goodfellow testamentary capacity test
- Did the testator understand the nature of the will and its effects? (Importance and each provision)
- Did the testator understand the extent of the property they were disposing of by the will? (Different types of property) (approx value of estate)
- Did the testator understand the claims to which they ought to give effect? (Consider everyone ought to consider does not mean have to give property to everyone).
what is the law on delusions and capacity?
can STILL HAVE testamentary capacity if it does not affect the Banks V Goodfellow test
what are the elements of intention?
‘Knowledge and approval’
Know all of the contents
Approve of all the contents
When does intention not need to be present at the time of execution
Parker v Felegate - memory disease
what happens if testator only has knowledge/ approval of part of a will?
only this part will be admitted to probate.
what is the general presumption for knowledge/ approval
Testator with testamentary capacity has knowledge and approval - evidence can overturn
when does the general presumption for intention not apply
blind or illiterate
Suspicious circumstances
who/ what is the burden of proof for coercive control
person accusing ON THE BALANCE OF PROBABILITIES to make a will invalid.
