Creating the will

Question 1

3 requirements for a valid will

Answer 1

capacity, intention, formalities

Question 2

what f the 3 requirements aren’t met

Answer 2

the will is not valid

Question 3

what is the golden rule regarding capacity

Answer 3

if there is no capacity then the will is void

Question 4

test for capacity

Answer 4

18 and mental capacity (no insane delusion)

Goodfellow test

Question 5

What is the goodfellow test

Answer 5

soundness of mind, memory and understanding. Must understand:
nature and affect of act
their property
the moral considerations

Question 6

when does the T need to have capacity

Answer 6

when executing the will

exception - when preparing it and when executing they understand it was prepared in line with their previous wishes

Question 7

presumption of capacity

Answer 7

if will is rational and no evidence of mental confusion before making it

Question 8

general rule about proving validity of a will

Answer 8

the person claiming it is valid must prove it

Question 9

what to do if you are unsure about your client’s capacity to make a will

Answer 9

ask doctor to report and witness. Keep note on file

Question 10

does MCA test for capacity apply to will making

Answer 10

no

Question 11

what if the client fails the goodfellow test

Answer 11

MCA statutory will can be approved by C of P if in best interests. C of P authorises execution and seals it.

Question 12

what intention must the T have

Answer 12

specific and general intention
intended to make a will (no any other doc)
and intended to make that will (knew and approved of content)

Question 13

presumption of knowledge and approval

Answer 13

if T has capacity, read the will and executed it then assume they have the specific intention (know and approve of content)

Question 14

when does the presumption of knowledge and approval not apply

Answer 14

blind T or suspicious circumstances surrounding drafting or execution

Question 15

what to do if T is blind

Answer 15

include extra statement at end of will that will was read to T and they knew and approved of content

Question 16

how to show a will is valid despite suspicious circumstances surrounding drafting or execution

Answer 16

executor must prove T knew or and approved the wills content

Question 17

can you accept will instructions from a third party

Answer 17

no - must speak to T without third party

Question 18

effect of failing to substantiate claim for undue influence

Answer 18

penalised with costs

Question 19

s9 formalities for a will

Answer 19

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.

Question 20

s9 requirements of a witness

Answer 20

attest and sign or acknowledge signature in Ts presence

Question 21

meaning of presence of witness

Answer 21

physical and mental presence. unobstructed line of sight but don’t need to tell doc is will, just see the doc.

Question 22

capacity requirements of a witness

Answer 22

no capacity requirements but they must understand significance

Question 23

effect of B or their spouse being a witness

Answer 23

the will is valid but gift to witness or their spouse fails

Question 24

what if solicitor fails to notify T of s9 requirements and fails to ensure compliance

Answer 24

claim in negligence

Question 25

exception when s9 requirements don’t need to be complied with

Answer 25

military service or by seaman at sea can be in any form. only requirement is intention to dispose of property after death

Question 26

presumption that s9 formalities have been met

Answer 26

if there is an attestation clauses stating that s9 formalities have been met

Question 27

what if there is no attestation clause

Answer 27

probate registry will require affidavit of due execution or of handwriting
or go to court

Question 28

does a will need to appoint trustees as well as executors

Answer 28

yes if the will creates a trust then appoint both

Question 29

can trustees and executors be the same people

Answer 29

yes

Question 30

max number of PRs

Answer 30

max 4 can apply for grant

Question 31

minimum number of executors

Answer 31

1

Question 32

longstop B

Answer 32

someone who will inherit if all else fails

Question 33

how is the property held if the will makes a contingent gift

Answer 33

it is held on trust until the condition is met

Question 34

what if the will makes a contingent gift but B dies before fulfilling the condition

Answer 34

the gift fails and it goes to residue or subsitutary B

Question 35

which members of an unincorporated association must sign to receive a gift in a will

Answer 35

all of them so for ease include provision in will that allows receipt from authorised officer of association

Question 36

where is IHT paid from

Answer 36

the residue unless the will states otherwise

Question 37

who pays the costs of B receiving the gift

Answer 37

B unless the will says otherwise. if it is ‘free from costs’ the residue pays

Question 38

what if T asks the drafting solicitor to be the executor

Answer 38

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

Question 39

powers to include in the will for a trustee

Answer 39

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

Question 40

powers to include in all wills

Answer 40

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

Question 41

s41 - power to appropriate assets

Answer 41

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.