Chapter 2: Wills: Validity

Question 1

Wills: Validity: Capacity

Answer 1

This element explores the requirements for making a valid will with a focus on testamentary capacity.

If you die without having made a valid will your assets will be shared in accordance with a statutory order and may end up belonging to the crown. This may not reflect your wishes.

Question 2

Validity of a will

Answer 2

When a person dies it is necessary to establish how their assets will be distributed and who is entitled to inherit.

If the deceased made a valid will the assets capable of passing by will (collectively known as the ‘distribution’ or ‘succession’ estate) are distributed in accordance with the terms of the will. To the extent a will fails to dispose of all of the assets, or if the deceased did not make a valid will, the intestacy rules will determine who will inherit.

Question 3

Validity of a will

Answer 3

When a person dies it is necessary to establish how their assets will be distributed and who is entitled to inherit.

If the deceased made a valid will the assets capable of passing by will (collectively known as the ‘distribution’ or ‘succession’ estate) are distributed in accordance with the terms of the will. To the extent a will fails to dispose of all of the assets, or if the deceased did not make a valid will, the intestacy rules will determine who will inherit.

Question 3

No specific wording or form is required

Answer 3

To make a valid will no specific wording or form is required and a testator (person who makes a will) can leave their property to whomever they choose (known as testamentary freedom). This is not necessarily the case in other jurisdictions, many of which require a testator to make specific provision for family members (known as forced heirship). In this module we consider the law applicable in the common law jurisdiction of England & Wales.

Question 4

Age requirements

Answer 4

A testator must be aged 18 or over (s7 Wills Act 1837) to make a valid will, with exceptions for those in military service, and satisfy all of the following legal requirements: In this element the focus is on Testamentary Capacity.

Question 5

Testamentary capacity

Answer 5

A testator must be mentally capable of making a will, referred to as ‘testamentary capacity’.

The common law test for testamentary capacity is set out in the case of Banks v Goodfellow and provides that a testator must:

• Understand the nature of the act and its effects;
• Appreciate the extent of the property of which they are disposing;
• Understand and appreciate the moral claims to which they ought to give effect; and have no disorder of the mind that perverts their sense of right or prevents the exercise of their natural faculties in disposing of property by will.

Question 6

‘Nature of the Act’

Answer 6

A testator must understand that they are signing a document that takes effect on death and disposes of their property.

A testator should be able to understand the broad effects of the will but is not required to understand every detail

Question 7

Extent of Property

Answer 7

A testator should have a general recollection of what they own and appreciate the approximate value of their estate and relative value of its assets.

A testator is not required to recall every item or know the precise value of each.

The test is one of general understanding rather than perfect memory.

Question 8

‘Moral claims’

Answer 8

When deciding who to benefit and to what extent the testator should be able to appreciate anyone to whom they owe a moral responsibility.

In Banks v Goodfellow it was thought most testators would make provision for those “nearest to them in kindred and who in life have been the objects of their affection” but there is no requirement for the testator to leave those people anything.

Question 9

Disorder of the Mind

Answer 9

A testator suffering from insane delusions, affecting their judgement generally or in relation to specific dispositions in the will, lacks testamentary capacity.

A testator may be suffering from an insane delusion and still have testamentary capacity provided that delusion is unconnected with and has no effect on the terms of the will.

Question 10

Timing Requirements

Answer 10

A testator must have testamentary capacity at the time the will is executed.

However, a limited exception to this timing requirement was established by Parker v Felgate, where a testator who lacks testamentary capacity at the time of execution can still make a valid will provided they:

Had testamentary capacity at the time they gave instructions for the preparation of the will; and

Question 11

Timing Requirements

Answer 11

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 they had previously given instructions.

This exception may apply where a testator’s testamentary capacity fluctuates over time (usually as a result of illness), or, an unexpected event occurs between giving instructions and executing the will which means a person no longer satisfies the test.

Question 12

Fluctuating capacity

Answer 12

It is possible for a testator’s capacity to fluctuate over time. This may be due to the nature of a particular illness or the testator’s circumstances.

A testator may have intermittent capacity; for example someone with dementia may have ‘lucid’ days on which it would be possible to satisfy the test for testamentary capacity and other days not.

Question 13

Fluctuating capacity

Answer 13

A testator may temporarily lack capacity as a consequence of a particular life event. In Key v Key the testator’s wife died a week before he made his will and the testator was found to lack capacity due to the effect of grief on his mental state.

The effect of depression and other mental health conditions which may affect the decision making abilities of a testator should be taken into account when assessing their testamentary capacity.

Question 14

Golden Rule

Answer 14

The case of Kenward v Adams established the “golden rule”, stating that when taking instructions for a will from a client who is elderly or seriously ill a medical practitioner should be instructed to make an assessment of the testator’s capacity, and a contemporaneous record of the assessment and conclusion should be made.

The golden rule is not a legal obligation but is considered best practice. Following the rule does not confirm the testator definitely did have testamentary capacity; the purpose of the rule is to reduce the likelihood of later disputes.

Question 15

Golden Rule

Answer 15

Complying with the rule may involve an awkward conversation with a client but this is not an excuse to avoid the issue.

The practical complications involved e.g. finding a medical practitioner willing to carry out the assessment have been acknowledged (Wharton v Bancroft) and a failure to comply will not automatically demonstrate poor practice.

Question 16

Presumption of capacity

Answer 16

The burden of proof of capacity technically lies with the propounder of the will (person seeking to admit the will to probate, usually the executor). However, capacity is presumed if the will on the face of it appears rational and has been duly executed.

Anyone who wishes to challenge the validity of the will on the grounds of lack of capacity must provide evidence sufficient to raise doubt. If such evidence is provided the presumption is rebutted and the burden of proof reverts to the propounder of the will to demonstrate the testator satisfied the Banks v Goodfellow test

Question 17

Presumption of capacity

Answer 17

The threshold to satisfy the test in Banks v Goodfellow is relatively low. A person may lack the ability to manage their own affairs and require help with day-to-day activities and still have testamentary capacity to make a will.

Question 18

Relationship with Mental Capacity Act 2005

Answer 18

A general statutory test of a person’s capacity to make decisions was introduced by the Mental Capacity Act 2005.

The statutory test was intended to tie in with the common law test for testamentary capacity in Banks v Goodfellow rather than replace it.

The statutory test does not override or modify the specific common law test. The rule in Banks v Goodfellow and subsequent case law remains correct and if an application of the two tests would produce a different outcome the common law test prevails.

Question 19

Statutory Wills

Answer 19

If a client lacks testamentary capacity they cannot make a valid will and a solicitor should not accept their instructions for the preparation of a will.

However, it is possible for the court to authorise the execution of a will on behalf of an adult who lacks capacity to make one for themselves (s.18(1) MCA 2005). The court must be persuaded there are grounds to diverge from the existing testamentary position and it is in the person’s best interests to do so.

This could be because the person has never made a will and the intestacy rules would otherwise apply, or because a change in circumstance means it is likely the testator would have reviewed his current position.

Question 20

Summary

Answer 20

To make a valid will the testator must have testamentary capacity, know and approve of the contents of the will and comply with s.9 Wills Act 1837

Following Banks v Goodfellow a testator will have testamentary capacity if they:

Understand the nature of the act

Appreciate the extent of their property

Question 21

Summary

Answer 21

Are aware of moral claims against their estate

Not be suffering from insane delusions affecting the will

Testamentary capacity must be present at execution (unless the rule in Parker v Felgate applies)

Testamentary capacity is presumed where the will is rational and has been duly executed

Question 22

Will Validity: Knowledge & Approval

Answer 22

This element explores the requirements for making a valid will with a focus on the testator’s knowledge and approval of their will.

Question 23

Validity of a will

Answer 23

When a person dies it is necessary to establish how their assets will be distributed and who is entitled to inherit.

If the deceased made a valid will the assets capable of passing by will (collectively known as the ‘distribution’ or ‘succession’ estate) are distributed in accordance with the terms of the will. To the extent a will fails to dispose of all of the assets, or if the deceased did not make a valid will, the intestacy rules will determine who will inherit.

Question 24

No specific wording or form is required

Answer 24

To make a valid will no specific wording or form is required and a testator (person who makes a will) can leave their property to whomever they choose (known as testamentary freedom). This is not necessarily the case in other jurisdictions, many of which require a testator to make specific provision for family members (known as forced heirship). In this module we consider the law applicable in the common law jurisdiction of England & Wales.

Question 25

Age Requirement

Answer 25

A testator must be aged 18 or over (s7 Wills Act 1837) to make a valid will, with exceptions for those in military service, and satisfy all of the following legal requirements:

In this element the focus is on Knowledge & Approval.

Question 26

Knowledge and approval

Answer 26

A testator must have a general intention to make a testamentary document which disposes of their property and should take effect following their death.

A testator is also required to have a specific intention to make the particular will they sign. This means they must know and approve of its contents and understand the choices they have made. It is possible to satisfy the test for testamentary capacity but lack knowledge and approval.

Question 27

Knowledge and Approval

Answer 27

Practically, a testator must read their will and understand it, and by their signature intend to give effect to its terms.

Similarly to testamentary capacity, knowledge and approval must be present at the time of execution, unless the exception in Parker v Felgate applies.

Question 28

Presumption

Answer 28

Knowledge and approval are presumed if the testator has testamentary capacity and the courts are generally cautious in accepting claims the testator lacked knowledge and approval. However, if there is evidence which raises doubt as to knowledge and approval the presumption is rebutted and the burden of proof shifts to those seeking to enforce the will to demonstrate it was present.

Question 29

Presumption

Answer 29

Note in particular that there is no presumption of knowledge and approval if:

The testator is blind or illiterate (ie unable to read the will)

The will was signed by someone on behalf of the testator

There are suspicious circumstances (e.g. the will was prepared by a key beneficiary or their relative)

Question 30

Affadavit of knowledge and approval

Answer 30

If there is no presumption of knowledge and approval, and the attestation clause (which explains the circumstances under which the will was executed) does not address this, an affidavit of knowledge and approval would be needed when submitting the will to probate.

If the presumption of knowledge and approval does not apply, it may be possible to take steps in advance to mitigate the risk of having to prove that it was present at a later date. For example, if a client has a medical condition which renders them unable to read, or the will is written in a language they do not read fluently, the attestation clause can be drafted to reflect the steps taken to ensure the testator fully understood the document they were signing.

Question 31

Consider the examples which follow:

Answer 31

Which of the following example attestation clauses would be used where a testator is a) blind, b) unable to read English or c) physically unable to sign? [All refer to the will being witnessed which is required s.9 Wills Act 1837].

Signed by A (who understands French but cannot read English) in the presence of both of us and then by us in A’s presence after the will had been read aloud to A in English and accurately translated by B who understands English and French in our presence when A seemed thoroughly to understand and approve the contents.

Question 32

Consider the examples which follow:

Answer 32

Signed by A in B’s name and on behalf of B (who is physically incapable of signing), in the presence of both of us and at B’s direction, and then by us in their presence, when the testator seemed thoroughly to understand and approve the contents.

Signed by A in the presence of both of us, then by us in the testator’s presence after this document had been read over by B to the testator when the testator seemed thoroughly to understand and approve the contents.

Question 33

Answers

Answer 33

Answers: Which of the following example attestation clauses would be used where a testator is a) blind, b) unable to read English or c) physically unable to sign? [All refer to the will being witnessed which is required s.9 Wills Act 1837].

Signed by A (who understands French but cannot read English) in the presence of both of us and then by us in A’s presence after the will had been read aloud to A in English and accurately translated by B who understands English and French in our presence when A seemed thoroughly to understand and approve the contents. [B]

Question 34

Answers

Answer 34

Signed by A in B’s name and on behalf of B (who is physically incapable of signing), in the presence of both of us and at B’s direction, and then by us in their presence, when the testator seemed thoroughly to understand and approve the contents.[C]

Signed by A in the presence of both of us, then by us in the testator’s presence after this document had been read over by B to the testator when the testator seemed thoroughly to understand and approve the contents. [A]

Question 35

Undue influence and duress

Answer 35

Even where a testator has knowledge and approval, if the will was made as a result of undue influence or duress it will not be valid because the will does not reflect the testator’s true intention.

A testator may have been unduly influenced in respect of a particular gift within the will or the will as a whole.

Where the whole of the will was made as a result of undue influence with will is invalid. Where part of a will was made as a result of undue influence, the remainder may be given effect to provided that the omissions do not “upset the whole tenor of what remains”, but the court cannot add or substitute words.

Question 36

What is undue influence

Answer 36

The key principles regarding undue influence in relation to wills were summarised in Re Edwards:

Undue influence occurs where a testator is coerced into making a will, or including particular terms, against their judgement and contrary to their true intention. The testator does not genuinely exercise choice but has surrendered to pressures they were not able to withstand.

Undue influence goes beyond persuasion. It is not unlawful to encourage someone to make a will or persuade them that certain provisions should be included e.g. by appealing to “ties off affection” or “pity for future destitution”. With persuasion the testator’s judgement is ‘convinced’.

Question 37

Convincing argument v persuades

Answer 37

The distinction between someone who makes a convincing argument and persuades the testator to take action, and someone who coerces a testator into a course of action, is not always clear.

There is no presumption of undue influence in relation to testamentary dispositions (which differs to lifetime arrangements) and whether undue influence has occurred is a question of fact.

Question 38

Burden of proving undue influence

Answer 38

The burden of proving undue influence lies with the person making the allegation and the court requires evidence - “It is not enough to prove that the facts are consistent with the hypothesis of undue influence. What must be shown is that the facts are inconsistent with any other hypothesis”. It is often a challenge to provide such evidence which makes bringing a successful undue influence claim difficult.

Question 39

Physical and Mental Strength

Answer 39

The physical and mental strength of the testator are relevant when determining how much pressure would be necessary to overbear the will. A weak or ill testator may be more susceptible and for the sake of a quiet life may be induced to do anything.

Whether or not the court considers the testator’s will to be fair is irrelevant. The question is whether, in executing the will, the testator acted “as a free agent”.

Question 40

Summary

Answer 40

To make a valid will a testator must have testamentary capacity, know and approve of the contents of their will and comply with the requirements of s.9 Wills Act 1837.

A testator must intend to make a will and intend to make the will they sign – this requires knowledge and approval of its contents.

Knowledge and approval is presumed where the testator has testamentary capacity unless the testator is blind, illiterate, someone signs on their behalf or there are suspicious circumstances.

A will (or gift within it) made as a result of undue influence will be invalid.

Undue influence requires evidence that the testator did not intend to make the will they signed. Persuasion does not amount to undue influence.

Question 41

Will Validity: Formal Requirements

Answer 41

This element explores the requirements for making a valid will with a focus on the requirements of s.9 Wills Act 1837.

Question 42

Will Validity: Formal Requirements

Answer 42

To be valid a will must comply with s 9 Wills Act 1837 (‘WA’) which states:

No will shall be valid unless—

(a) it is in writing, and signed by the testator, or by some other person in his presence and by his direction; and

(b) it appears that the testator intended by his signature to give effect to the will; and

(c) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and

Question 43

Will Validity: Formal Requirements

Answer 43

(d) each witness either

(i) attests and signs the will; or

(ii) acknowledges his signature,

in the presence of the testator (but not necessarily in the presence of any other witness), but no form of attestation shall be necessary.

Question 44

Section 9 Wills Act 1837 (‘WA’)

In writing

Answer 44

(a) it is in writing, - Includes handwritten and typed/printed text in any language

and signed by the testator, - Any ‘mark’ may constitute a ‘signature’ if the testator intends it to be, but it is preferable for a testator to use their normal signature to avoid doubt

or by some other person in his presence and by his direction - This could apply e.g. if a testator is physically unable to sign themselves and authorises another person to sign on their behalf

Question 45

Intended signature to give effect

Answer 45

b) it appears that the testator intended by his signature to give effect to the will - Where the signature is at the end of a will it usually indicates the necessary intention. Signatures at the beginning or in the middle of the will can be problematic.

Question 46

Witnesses

Answer 46

(c) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time - A testator either signs in person or acknowledges the signature of the person who signed on their behalf. Two is the minimum - there is no maximum.

Question 47

Witnesses

Answer 47

Witnesses must be physically and mentally present but do not need to know a will is being signed or its terms. A minor, someone who is blind, drunk or of unsound mind should not act.

Question 48

Witnesses

Answer 48

The full name, addresses and occupation of each witness should be noted in case the will is challenged at a later date and they are required to give evidence (in an affidavit) of what happened at execution or the testator’s mental state.

Question 49

Witnesses

Answer 49

(d) each witness either (i) attests and signs the will; or (ii) acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness) - Both witnesses must sign the will in front of the testator, but it is not necessary for each witness to also sign in front of each other

Question 50

Attestation

Answer 50

An attestation clause describes the circumstances under which the will was executed.

For example:

Signed by the above named)

[ testator ] in our joint presence )

and then by us in his/hers)

There is no legal obligation to include an attestation clause nor is any specific form of attestation required.

However, a properly drafted attestation clause raises a presumption that the will was executed in accordance with the requirements of s 9 WA (a presumption of due execution).

Question 51

Absence of poorly worded attestation

Answer 51

In the absence of, or a poorly worded, attestation clause proof of proper execution is required. Usually, an affidavit of due execution sworn by the witnesses.

Question 52

Special Circumstances

Answer 52

If the will is executed in special circumstances (e.g. will is signed on behalf of the testator, or, the testator is blind or illiterate) the attestation clause should be amended to reflect these special circumstances and to provide evidence of the requisite knowledge and approval. The example below could be used where a testator cannot read the will.

Signed by the above named [testator] in our joint presence and then by us in his/hers all signatures having been added after this document had been read to [testator] by [name] when [testator] seemed thoroughly to understand and approve its contents.

It is very important for a solicitor to ensure the correct execution process is followed and failure to do so may constitute negligence. Solicitors should provide specific advice on this point and ideally arrange for the will to be executed in the office so that the process can be overseen.

Question 53

Attestation: Section 15 Wills Act 1837

Answer 53

Under this section any gifts to an attesting witness (or their spouse) are void. Therefore, if a beneficiary, or their spouse at the time of execution, acts as a witness, the beneficiary cannot inherit under the will. A beneficiary is anyone who gains any benefit under the will.

The will remains valid but a solicitor may be negligent if they do not provide advice on the effect of s 15.

If a professional executor (who is entitled to charge for their services) witnesses a will, s 28(4)(a) Trustee Act 2000 confirms s 15 will not apply to the remuneration the professional executor will receive for acting in this role

Question 54

Attestation: Section 15 Wills Act 1837

Answer 54

The appointment of the beneficiary as an executor remains effective even if s 15 applies to deny them their inheritance.

If there are at least two other witnesses not caught by s 15, or if the will is subsequently confirmed by a properly executed codicil, the effect of s 15 can be disregarded; the will would be properly executed without the beneficiary (or their spouse) witnessing the will.

Question 55

Summary

Answer 55

To make a valid will a testator must have testamentary capacity, know and approve of the contents of their will and comply with the requirements of s.9 Wills Act 1837

To comply with s. 9 the will must be in writing and signed by the testator (or by someone else on his behalf)

The testator’s signature must be made or acknowledged in the presence of two adult witnesses with capacity

The witnesses must each sign the will in the presence of the testator but not necessarily in the presence of each other

Question 56

Summary

Answer 56

The attestation clause in a will describes the circumstances under which the will was signed.

If a beneficiary (or their spouse/civil partner) acts as a witness the will as a testamentary document remains valid but under s.15 Wills Act 1837 the gift to the beneficiary is void

S.15 Wills Act 1837 has no effect on the appointment of a witness as an executor