Drafting and Alteration Flashcards
What are the requirements for a valid will?
(i) Capacity;
(ii) Intention; and
(iii) Formalities
What is the golden rule when assessing testamentary capacity?
The solicitor should ask a doctor to assess the testator and to witness the will.
What is the test for establishing testamentary capacity?
Testator understands:
(a) nature of their act and its broad effects;
(b) extent of their property; and
(c) moral claims they ought to consider
What is the presumption regarding capacity?
There is a presumption of capacity. It is on another to prove that there was no capacity.
When will there be no presumption of knowledge and approval?
(i) If the testator is blind, illiterate, or didn’t sign personally;
(ii) if there were suspicious circumstances, e.g. the will was prepared by a major beneficiary
What is the purpose of an attestation clause?
It raises the presumption of due execution.
E.g. ‘Signed by the testatrix in our joint presence and then by us in hers’
What is required to prove the intention to draft the will?
No need to prove intention as there is a presumption of knowledge and approval.
How can undue influence be proven to render a will void?
When the testator’s freedom of choice was overcome by intense pressure from another.
What is an affidavit?
Formal statement of fact used when there are uncertainties in a will.
When is an affidavit required?
When there is an issue regarding due execution, capacity of testator, or the testator’s knowledge and approval.
What are the formalities of execution?
(a) in writing and signed (by the testator or at their direction);
(b) testator intended for the signature to give effect to the will (intention);
(c) signature made/acknowledged by the testator in the presence of two or more witnesses;
(d) each witness attests and signs the will or acknowledges his signature in the presence of the testator
What happens if a will doesn’t have an attestation clause?
HMCTS will require an affidavit of due execution from a witness or someone present during the execution
What is the effect of a codicil?
A codicil amends an earlier will.
What are the formalities of a codicil?
Must be witnessed by 2 people, the terms of the codicil are in writing and the signature intends to give effect to the codicil.
What is the general rule regarding amendments to a will? (Before and after)
Amendments made before the will is executed are valid and enforceable provided the testator intended them to form part of the will.
Amendments made after the will is executed are invalid and unenforceable.
When will alterations made after the will was executed be valid?
(i) If the alterations were themselves executed like a will; or
(ii) In the margin next to the alteration the testator and witnesses initial the document
What happens to the original clause of the will if an invalid alteration has been made?
The original wording stands provided it can be deciphered - it must be apparent and be capable of being read via ordinary means (i.e. no x-rays)
How can a testator revoke a will in its entirety or an individual clause?
(i) By destroying it with an intention to revoke on behalf of the testator;
(ii) by the testator intentionally obliterating the clause so the original wording cannot be read
When will the court apply the conditional revocation rule?
When the testator obliterates the original wording and adds a substitute clause, but the substitution is ineffective.
The court will try and ascertain the original wording. This could be via e.g. finding a copy of instructions, finding a copy of the original will etc.
