Creating the will Flashcards
3 requirements for a valid will
capacity, intention, formalities
what f the 3 requirements aren’t met
the will is not valid
what is the golden rule regarding capacity
if there is no capacity then the will is void
test for capacity
18 and mental capacity (no insane delusion)
Goodfellow test
What is the goodfellow test
soundness of mind, memory and understanding. Must understand:
nature and affect of act
their property
the moral considerations
when does the T need to have capacity
when executing the will
exception - when preparing it and when executing they understand it was prepared in line with their previous wishes
presumption of capacity
if will is rational and no evidence of mental confusion before making it
general rule about proving validity of a will
the person claiming it is valid must prove it
what to do if you are unsure about your client’s capacity to make a will
ask doctor to report and witness. Keep note on file
does MCA test for capacity apply to will making
no
what if the client fails the goodfellow test
MCA statutory will can be approved by C of P if in best interests. C of P authorises execution and seals it.
what intention must the T have
specific and general intention
intended to make a will (no any other doc)
and intended to make that will (knew and approved of content)
presumption of knowledge and approval
if T has capacity, read the will and executed it then assume they have the specific intention (know and approve of content)
when does the presumption of knowledge and approval not apply
blind T or suspicious circumstances surrounding drafting or execution
what to do if T is blind
include extra statement at end of will that will was read to T and they knew and approved of content
how to show a will is valid despite suspicious circumstances surrounding drafting or execution
executor must prove T knew or and approved the wills content
can you accept will instructions from a third party
no - must speak to T without third party
effect of failing to substantiate claim for undue influence
penalised with costs
s9 formalities for a will
written, signed by T or at Ts direction and in their presence, witnessed by 2 or more witnesses and intended by signature to give effect to will.
s9 requirements of a witness
attest and sign or acknowledge signature in Ts presence
meaning of presence of witness
physical and mental presence. unobstructed line of sight but don’t need to tell doc is will, just see the doc.
capacity requirements of a witness
no capacity requirements but they must understand significance
effect of B or their spouse being a witness
the will is valid but gift to witness or their spouse fails
what if solicitor fails to notify T of s9 requirements and fails to ensure compliance
claim in negligence
exception when s9 requirements don’t need to be complied with
military service or by seaman at sea can be in any form. only requirement is intention to dispose of property after death
presumption that s9 formalities have been met
if there is an attestation clauses stating that s9 formalities have been met
what if there is no attestation clause
probate registry will require affidavit of due execution or of handwriting
or go to court
does a will need to appoint trustees as well as executors
yes if the will creates a trust then appoint both
can trustees and executors be the same people
yes
max number of PRs
max 4 can apply for grant
minimum number of executors
1
longstop B
someone who will inherit if all else fails
how is the property held if the will makes a contingent gift
it is held on trust until the condition is met
what if the will makes a contingent gift but B dies before fulfilling the condition
the gift fails and it goes to residue or subsitutary B
which members of an unincorporated association must sign to receive a gift in a will
all of them so for ease include provision in will that allows receipt from authorised officer of association
where is IHT paid from
the residue unless the will states otherwise
who pays the costs of B receiving the gift
B unless the will says otherwise. if it is ‘free from costs’ the residue pays
what if T asks the drafting solicitor to be the executor
act in their best interests, explain their options and that it doesn’t have to be a professional, don’t make them think it is important to appoint you, record advice given
powers to include in the will for a trustee
power to appropriate assets (s41 doesn’t apply to trustees, only PR)
power to invest (they have duty to invest)
power to purchase land
power to carry on Ts business
power to sell personalty
power of maintenance
power of advancement
T can choose to include or exclude any of these
powers to include in all wills
power to charge (remuneration)
power to insure assets (duty to preserve estate)
can extend power to appropriate assets but s41 applies automatically
power of self dealing (incase executor is also B)
power to accept receipts from and on behalf of minor
s41 - power to appropriate assets
applies to PR but not trustee - can appropriate any assets in the estate towards satisfaction of any gift or interest in residue provided the appropriation doesn’t prejudice any of Bs specific legacies. the legatee to whom the assets are appropriated must consent to the appropriation.
