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Chapter 2) Will validity and amendment Flashcards

1
Q

What happens to a person’s assets if they die without a valid will?

A

Assets are shared according to a statutory order, potentially belonging to the crown

This may not reflect the deceased’s wishes.

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2
Q

What is the term for the person who makes a will?

A

Testator

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3
Q

What is testamentary freedom?

A

The ability of a testator to leave their property to whomever they choose

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4
Q

What is the legal age requirement to make a valid will in England & Wales?

A

18 years old (with exceptions for military service)

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5
Q

What is testamentary capacity?

A

Mental capability of a testator to make a will

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6
Q

What are the four criteria for testamentary capacity as established in Banks v Goodfellow?

A
  • Understand the nature of the act and its effects
  • Appreciate the extent of the property
  • Understand moral claims to which they ought to give effect
  • Have no disorder of the mind affecting their judgement
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7
Q

What does ‘nature of the act’ refer to in the context of testamentary capacity?

A

Understanding that one is signing a document that takes effect upon death and disposes of property

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8
Q

What does ‘extent of property’ mean regarding testamentary capacity?

A

General recollection of what the testator owns and appreciation of the approximate value of their estate

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9
Q

What are moral claims in the context of testamentary capacity?

A

Recognition of those to whom the testator owes moral responsibilities

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10
Q

What is meant by ‘disorder of the mind’ in relation to testamentary capacity?

A

Insane delusions affecting judgement, which can invalidate testamentary capacity

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11
Q

When must testamentary capacity be present?

A

At the time the will is executed

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12
Q

What is the exception established by Parker v Felgate regarding testamentary capacity?

A

A testator can make a valid will if they had capacity when giving instructions, and understood they were signing a will at execution

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13
Q

What is meant by fluctuating capacity?

A

A testator’s ability to make a will may vary over time due to illness or circumstances

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14
Q

What is the ‘golden rule’ established in Kenward v Adams?

A

Medical assessment of a testator’s capacity should be made when taking instructions from an elderly or seriously ill client

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15
Q

Who bears the burden of proof for testamentary capacity?

A

The propounder of the will (usually the executor)

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16
Q

What must be proven to rebut the presumption of capacity?

A

Evidence sufficient to raise doubt about the testator’s capacity

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17
Q

What does the Mental Capacity Act 2005 establish?

A

A general statutory test for decision-making capacity

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18
Q

What can the court authorize for a client who lacks testamentary capacity?

A

Execution of a will on behalf of the adult lacking capacity

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19
Q

What must a testator know and approve for a will to be valid?

A

The contents of the will and the intention to make a testamentary document

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20
Q

What is presumed if a testator has testamentary capacity?

A

Knowledge and approval of the will’s contents

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21
Q

What is required if there is no presumption of knowledge and approval?

A

An affidavit of knowledge and approval when submitting the will to probate

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22
Q

What is undue influence in the context of wills?

A

Coercion of a testator into making a will contrary to their true intention

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23
Q

What distinguishes undue influence from persuasion?

A

Undue influence involves coercion, while persuasion involves convincing the testator’s judgement

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24
Q

Who bears the burden of proving undue influence?

A

The person alleging undue influence

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25
What is the distinction between persuasion and coercion in the context of testamentary disposition?
Persuasion convinces the testator's judgment, while coercion forces the testator into action.
26
Is there a presumption of undue influence in relation to testamentary dispositions?
No, there is no presumption of undue influence in testamentary dispositions.
27
Who carries the burden of proving undue influence?
The person making the allegation of undue influence.
28
What must be shown to prove undue influence?
Facts must be inconsistent with any other hypothesis.
29
What factors are relevant when determining undue influence?
The physical and mental strength of the testator.
30
What is the primary question regarding the testator's will?
Whether the testator acted 'as a free agent' in executing the will.
31
What are the requirements for making a valid will according to s.9 Wills Act 1837?
A testator must have testamentary capacity, know and approve of the contents, and comply with s.9 requirements.
32
What does testamentary capacity require?
The testator must intend to make a will and intend to make the will they sign.
33
Under what circumstances is knowledge and approval presumed?
When the testator has testamentary capacity, unless they are blind, illiterate, or there are suspicious circumstances.
34
What renders a will or gift within it invalid?
If made as a result of undue influence.
35
What must be proven for undue influence to be established?
Evidence that the testator did not intend to make the will they signed.
36
What is meant by 'testamentary freedom'?
A testator can leave their property to whomever they choose.
37
What is the minimum age to make a valid will as per s.7 Wills Act 1837?
18 years old, with exceptions for military service.
38
What are the four key requirements under s.9 Wills Act 1837 for a valid will?
* In writing * Signed by the testator or a person in their presence * Signature intended to give effect to the will * Signature made in presence of two or more witnesses
39
What is the role of witnesses in the execution of a will?
Witnesses must sign the will in the presence of the testator.
40
What is an attestation clause?
It describes the circumstances under which the will was executed.
41
What happens if a beneficiary acts as a witness to a will?
The gift to the beneficiary is void under s.15 Wills Act 1837.
42
What is the effect of s.15 Wills Act 1837 on the appointment of a witness as an executor?
The appointment remains effective even if s.15 applies.
43
What must be noted for each witness to a will?
Full name, addresses, and occupation.
44
What is required if a will is executed in special circumstances?
The attestation clause should be amended to reflect those circumstances.
45
What is the presumption raised by a properly drafted attestation clause?
A presumption of due execution.
46
What is the significance of the presence of witnesses during the signing of a will?
Witnesses must be physically and mentally present but do not need to know the will's terms.
47
What are the requirements for a valid will according to the Wills Act 1837?
A testator must have testamentary capacity, know and approve the contents, and comply with the requirements of s.9 Wills Act 1837.
48
What does s.9 Wills Act 1837 require for a will?
The will must be in writing and signed by the testator (or someone on their behalf) in the presence of two adult witnesses.
49
Who must witness the signing of a will?
Two adult witnesses with capacity must sign the will in the presence of the testator, but not necessarily in the presence of each other.
50
What is the effect of s.15 Wills Act 1837 on a beneficiary witnessing a will?
The will remains valid, but the gift to the beneficiary is void.
51
Does s.15 Wills Act 1837 affect the appointment of a witness as an executor?
No, it has no effect on the appointment of a witness as an executor.
52
What should the wording of a will be like?
It should be clear, concise, and unambiguous, avoiding colloquial and technical language unless needed for precision.
53
What is the common structure followed by professionally drafted wills?
1. Introductory clauses 2. Appointment of executors and guardians 3. Dispositive clauses 4. Administrative provisions 5. Execution/attestation.
54
What is the purpose of a revocation clause in a will?
To ensure that all previous wills and testamentary dispositions are revoked, so only one valid will exists at any time.
55
What happens if a testator has more than one valid will?
The later will impliedly revokes the earlier will to the extent that it is inconsistent with or merely repeats the terms of the earlier will.
56
Are burial and funeral wishes legally binding?
No, they are not legally binding but will normally be followed where possible.
57
What is the role of a personal representative (PR)?
To collect the deceased's assets, administer the estate, pay debts, and distribute assets to beneficiaries.
58
What is the minimum number of executors required in a will?
A minimum of 1 executor is required, but it's better to appoint at least two.
59
What happens to the appointment of an executor if the testator divorces?
The appointment of a spouse/civil partner becomes ineffective upon divorce/dissolution.
60
What is an executor's primary duty?
To administer the estate.
61
What powers do executors and trustees have?
Their powers may derive from statute, common law, and/or express powers conferred by the will.
62
What is an attestation clause in a will?
It describes the circumstances under which the will was signed and confirms the requirements for due execution.
63
Fill in the blank: A will is valid without a _______ clause but it is good drafting to include one.
[revocation]
64
True or False: An executor can be a minor.
False.
65
What is the role of trustees in relation to a will?
To manage any trusts that continue following estate administration.
66
What should be considered when appointing guardians in a will?
Consent from the proposed guardian and any financial provision for the guardian.
67
What happens if a will contains no express administrative powers?
Only statutory and common law powers will apply.
68
What is the Society of Trusts and Estates Practitioners (STEP)?
A professional body promoting best practice for those advising on wills, trust, and tax matters.
69
What should be included in the commencement of a will?
The testator's full name, address, and sometimes occupation.
70
What is the significance of the testator's signature on a will?
It must be made or acknowledged in the presence of two adult witnesses.
71
What is the maximum number of executors that can apply for a grant of representation?
A maximum of 4.
72
What is a codicil?
A testamentary document that can amend an existing will.
73
What is a trust corporation?
A specific type of corporation with authority to carry out trustee and personal representative roles.
74
What is the common practice for the attestation clause in a will?
It is common for it to be the final clause in the main body of the will.
75
Fill in the blank: A will may contain a list of express clauses at the end or may include by reference a _______ set of express clauses.
[standard]
76
What is the first step to draft a will?
Start with an appropriate precedent and insert, amend or remove clauses in accordance with the client instructions.
77
List the typical structure of a will.
* Introductory clauses * Appointment of executors and guardians * Dispositive clauses * Administrative provisions * Execution/attestation
78
What clauses should be included to avoid confusion in a will?
Revocation, date and attestation clauses.
79
True or False: A will is still valid without revocation, date, and attestation clauses.
True
80
Who may act as an executor of a will?
Any adult with mental capacity.
81
How can the appointment of an executor be characterized?
Absolute or qualified.
82
What is required to appoint a law firm partnership as executor?
All of the partners must be appointed and expressly limit the number.
83
Can an LLP and trust corporation be appointed directly as executors?
Yes.
84
What is a common practice regarding the appointment of executors and trustees in a will?
Most wills appoint executors and trustees in the same clause and appoint the same people in both capacities.
85
What do the administrative clauses in a will state?
The powers the executors and trustees have to carry out their role.
86
What type of powers take priority in the administrative clauses?
Express powers take priority over statutory and common law defaults.

Wills and administration of estates (5 decks)

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