Chapter 1: Execution of Wills

Question 1

What is needed for a valid will?

Answer 1

The testator must have:
i. had capacity at the time the will was made,
ii. intended to make a will, and
iii. executed the will in accordance with certain formalities

Question 2

What is the presumption re mental capacity?

Answer 2

A person will be presumed to have had mental capacity unless someone challenging the validity of a will proves the testator lacked capacity

Question 3

How old must you be to create a will validly?

Answer 3

At least 18.

Exception - ‘privileged wills’ made by members of the armed forces on active service or seamen at sea.

Question 4

What is the test for capacity by statute?

Answer 4

A person lacks capacity if:
1. At the material time,
2. The person is unable to make a decision for themselves in relation to the matter in question,
3. Because of an impairment of, or a disturbance in the functioning of, the mind or brain.

Question 5

What is the common law test for capacity?

Answer 5

To have mental capacity, the testator must have understood, at the time of execution of their will:
1. The nature of the act (that they were making a will and its effects)
2. The extent of their property, and
3. The claims to which they ought to give effect

Question 6

What is the material time at which mental capacity is needed?

Answer 6

In most cases, it is when the testator executed (signed) the will.

Question 7

When will a will be valid despite the testator not having mental capacity at the time the will was executed?

Answer 7

Occasionally, a testator will not have had adequate mental capacity at the date of executing the will but will have had sufficient capacity when giving instructions to the will drafter.

In such a case, if the will was prepared in accordance with those instructions and, at the time of execution, the testator understood they were signing a will for which instructions had previously been given, the testator will be deemed to have acted with capacity.

Question 8

When will intention be present?

Answer 8

If the testator had:
a. a general intention to make a will, and

b. a specific intention to make the particular will - the testator must have known and approved the contents of the will when the testator executed it

Question 9

What is the general presumption re knowledge and approval?

Answer 9

There is a general rebuttable presumption of knowledge and approval - that if the testator had the required mental capacity, they acted with the requisite knowledge and approval.

Question 10

How can a challenger prove lack of proper intention?

Answer 10

Usually by showing the testator made the will as a result of fear, fraud, undue influence, or mistake

Question 11

When does the general presumption re knowledge and approval not apply?

Answer 11

1. If the testator is blind or illiterate, or the will is signed on the testator’s behalf
   - usual to include an attestation clause in these cases stating that the will was read to the testator or that it was read by them and they knew and approved the contents.
2. If there are suspicious circumstances

Question 12

What might constitute suspicious circumstances?
What is the effect of this?

Answer 12

Where the will drafter substantially benefits from the will, the gift will fail unless evidence of the testator’s knowledge and approval of the gift is offered by the person putting forward the will.

Question 13

In deciding whether a will is invalid for want of knowledge and approval, what will a court consider?

Answer 13

1. Whether the will is short and easy to understand
2. Whether the testator was literate
3. Surrounding facts, such has whether the testator asked 2 people to witness the document, indicating the tester knew it was a will, and
4. Whether there are any suspicious circumstances surrounding the will, such as whether a beneficiary procured the will

Question 14

What should a solicitor do if a client proposes to make a gift of significant value to them or a member of their family?

Answer 14

Unless the client seeks independent legal advice, they should have a policy of refusing to act.

Question 15

When will a will not be regarded as the act of the testator + not be admitted to probate?

Answer 15

If it is made as a consequence of force, fear, fraud, or undue influence.

Question 16

When does duress occur?

Answer 16

When the testator has been injured or threatened with injury.

Question 17

When will a will be admitted to probate if it has been made as a result of duress?

Answer 17

Only if a court pronounces that it is valid and issues a grant in solemn form.

Question 18

What is needed to receive a grant in solemn form?

Answer 18

The executor, or any person interested in the will, propounds the will in a claim in which they ask the court to determine the validity of the will.

All interested persons will be parties to the claim.

Upon hearing evidence, the court will pronounce as to the validity of that will.

If the will is pronounced valid, the court will order the issue of a grant of probate.

Question 19

What does it mean to propound a will?

Answer 19

It means to take legal action to have it authenticated as part of the probate process.

Question 20

What is undue influence?

Answer 20

Something that overpowers the volition of the testator.

It is permissible to persuade them but not to coerce them.

Question 21

What is needed to prove undue influence?

Answer 21

Must prove that there was coercion or pressure that overpowered the freedom of action of the testator.

Question 22

When is the court more likely to find undue influence?

Answer 22

When the testator is physically or mentally weak

Question 23

What formalities are needed for a will to be valid?

Answer 23

The will must be:
1. In writing,

2. Signed by the testator or by some other person in the testator’s presence and by their direction in a way. that makes it appear the testator intended by the signature to give effect to the will,
3. Signed or acknowledged by the testator int eh presence of 2 or more witnesses present at the same time, and
4. Signed by each witness in the presence of the testator, or each witness must acknowledge their prior signature in the presence of the testator.

Question 24

What formalities apply to privileged wills?

Answer 24

None - can be made informally, or even orally

Question 25

When will an attestation clause be included?

Answer 25

Usually included to confirm the formalities needed to create a will have been complied with.

Question 26

What does a typical attestation clause state?

Answer 26

“Signed by the testator in our presence and then by us in his”.

Question 27

What happens if an attestation clause is not included in a will?

Answer 27

The proponent of the will (person offering will into probate) must offer proof that these formalities were followed - usually in the form of having 1 of the witnesses testify

Question 28

When is a special attestation clause necessary?

Answer 28

For a blind or illiterate testator, to evidence that it was read to them, they understood and approved its contents, and they then signed or it was signed by another in the testator’s presence and at his direction

Question 29

When may another person sign a will on the testator’s behalf?

Answer 29

Provided the signature is made in the presence of, and by the director of, the testator.

The person so signing may be one of the witnesses, though he need not be.

The testator must be present when the signature is made + must in some way indicate to the witness that the signature has been put there at his request

Question 30

What are requirements needed of a witness?

Answer 30

No requirements re capacity, but they must be capable of understanding the significance of being a witness to a signature.

Question 31

Who is incapable of being a witness to a signature?

Answer 31

A blind person - the person’s blindness prevents them from witnessing the visible act.

Mentally unsound person

Question 32

Who should not be a witness?

Answer 32

A beneficiary of a will (or their spouse)

Question 33

When may a will identify another document such that it becomes part of a will?

Answer 33

If the document exists at the date of the will and is referred to in the will as so existing - otherwise it cannot be incorporated.

Future intention to make the list, schedule, or memorandum doesn’t suffice.