Essential requirements for a valid will

Question 1

What are the three sets of rules which all wills must comply with to be valid?

Answer 1

1. rules on formalities
2. rules on the testator’s capacity
3. rules on intention

Question 2

What are the rules on formalities governed by?

Answer 2

s.9 Wills Act 1837

Question 3

What are the requirements under s9 Wills Act 1837?

Answer 3

9(a) - in writing & signed by testator/someone in his presence
9(b) - testator intended to give effect to the will by their signature
9(c) - signature in presence of two witnesses at the same time
9(d) - each witnesses signs the will

Question 4

Who can make a ‘privileged will’?

Answer 4

members of the armed forces on active service, or sailors at sea

Question 5

Why include an attestation clause?

Answer 5

without one the will is still valid however evidence would need to be produced to show the s9 requirements had been complied with

Question 6

When should a special attestation clause be added?

Answer 6

Where the testator is blind or illiterate

Question 7

How old must the testator be to have capacity?

Answer 7

at least 18

Question 8

What section governs the age for capacity?

Answer 8

s.7 Wills Act

Question 9

What is the legal presumption for capacity?

Answer 9

that the testator has testamentary capacity

Question 10

What is the exception to the strict rule of capacity?

Answer 10

If there was capacity when instructions were given, if the will was prepared in accordance with those instructions and if now the testator understands that they are signing a will prepared in accordance with those instructions there is sufficient capacity on execution for the will to be valid

Question 11

What is the case law for capacity exception?

Answer 11

Parker v Felgate [1883]

Question 12

What case formed the standard test for whether a testator has testamentary capacity?

Answer 12

Banks v Goodfellow [1870]

Question 13

What are the three questions in the Banks v Goodfellow test?

Answer 13

1. did the testator understand the nature or the will and its effects?
2. did the testator understand the extent of the property they were disposing of by the will?
3. did the testator understand the claims to which they ought to give effect?

Question 14

Can you suffer from delusions and have testamentary capacity?

Answer 14

yes - but does depend if those delusions affect any of the three tests

Question 15

What are the two elements are needed for the intention requirement to be fulfilled?

Answer 15

1. testator must have intended to make a will
2. they must have intended to make the actual will they signed

Question 16

What is the most common fact that brings intention into doubt?

Answer 16

where there is reason to believe that the testator has been induced, or sometimes forced, to make a will they did not wish or intend to make

Question 17

Who needs to prove there was force, fear, fraud or undue influence to invalidate a will?

Answer 17

The person asserting them on the balance of probabilities