Chapter 8: Will Drafting Flashcards
Validity of a Will
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.
Validity of a Will
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.
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:
Testamentary Capacity
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.
Nature of Act
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.
Extent of Property
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.
Moral Claims
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.
Disorder of the Mind
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.
Timing Requirement
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
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.
Exceptions to the Timing Requirement
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.
Fluctuating Capacity
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.
Fluctuating Capacity
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.
Golden Rule
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.
Golden Rule
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.
Presumptions of Capacity
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.
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.
Relationship with the Mental Capacity Act
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.
Statutory Wills
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.
Summary
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
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
Formal Requirements
Form and Wording
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.
Section 9 of the Wills Act 1837
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
(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.
It is in writing
(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
Intended by signature to give effect
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.
Two witnesses
(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.
Physically and mentally present witnesses
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.
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.
Role of witnesses
(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