EXECUTION OF WILLS

Question 1

3

CREATING A VALID WILL

Answer 1

To make a valid will, a testator (that is, the person making the will) must have:
*Had capacity at the time the will was made;
Intended** to make a will; and
**Executed the will in accordance with certain formalities.

Question 2

2

CAPACITY

Answer 2

1. To validly make a will, in most cases the testator must be at least age 18 (there is an exception for ‘privileged wills’ made by members of the armed forces on active service or seamen at sea) and must have had mental capacity.
2. However, a person will** be presumed to have had mental capacity **unless someone challenging the validity of a will proves the testator lacked capacity.

Question 3

3

Test for Capacity
By statute, a person lacks capacity if:

Answer 3

*At the material time,
*The person is unable to make a decision for themselves in relation to the matter in question,
*Because of an impairment of, or a disturbance in the functioning of, the mind or brain.

Essentially, this is a restatement of the common law test (which might make things a little clearer): To have mental capacity, the testator must have understood, at the time of execution of their will:
*The nature of the act (that is, that they were making a will and its efects);
*The** extent** of their property; and
*The claims to which they ought to give efect (that is, who normally would be the persons a testator would ordinarily give gifts to—this doesn’t mean that only these persons should be given gifts, but rather only that the testator understood who these persons would be).

Question 4

2

What Is the Material Time?
mental capacity

Answer 4

1. In most cases, the material time is when the testator exe-cuted (signed) the will.
2. However, occasionally (especially in
   exams) a testator will not have had adequate mental capacity at the date of executing the will but will have had sufficient capacity when giving instructions to the will drafter. In such a case, if the will was prepared in accordance with those instructions and, at the time of execution, the testator un-derstood they were signing a will for which instructions had previously been given, the testator will be deemed to have acted with capacity.

Question 5

2

INTENTION

Answer 5

For a will to be valid, the testator must have had the intention to make a will. This intention was present if the testator had:
*A general intention to make a will, and
*A specifc intention to make the particular will—that is, the testator must have** known and approved** the contents of the will when the testator executed it.

Question 6

Rebuttable Presumption of Knowledge and Approval

Answer 6

Similar to capacity, there is a general rebuttable presumption of knowledge and approval—that if the testator had the re-quired mental capacity, they acted with the requisite knowledge and approval.

Question 7

2

However, the presumption of knowledge and approval does not apply in two circumstances:

Answer 7

1. *If the testator is** blind or illiterate,** or the will is signed on the testator’s behalf (it is usual in such cases to include a statement in the attestation clause of the will stating that the will was read to the testator or that it was read by them and they knew and approved the contents); or
2. If there are suspicious circumstances, such as where the will drafter substantially benefits from the will, the gift will fail unless evidence of the testator’s knowledge and approval of the gift is offered by the person putting forward the will.

Question 8

4

Factors to Consider
In deciding whether the will was invalid for want of knowl-edge and approval, a court will consider factors such as:

Answer 8

*Whether the will is short and easy to understand;
*Whether the testator was literate;
*Surrounding facts, such as whether the testator asked two people to witness the document, indicating the testa-tor knew it was a will; and
*Whether there are any suspicious circumstances sur-rounding the will, such as whether a benefciary procured the will.

Question 9

Gifts to Solicitors

Answer 9

If regulated by the Solicitors Regulation Authority (‘SRA’), a solicitor is required to act with honesty and integrity. It is sen-sible to have a policy of refusing to act when a client proposes to make a gift of signifcant value to a fee earner in a frm (or a member of their family) unless the client seeks indepen-dent legal advice.

Question 10

4

Duress

Answer 10

1. If a will is made as a consequence of force, fear, fraud, or undue infuence, it is not regarded as the act of the testa-tor and is not admitted to probate.
2. Duress occurs when the **testator has been injured or threatened with injury. A will that has been made as a result of force and fear (that is, under duress) will be admitted to probate only if a court pronounces that it is valid and issues a grant in solemn form.
3. To receive a grant in solemn form, the executor, or any person interested **in the will, propounds the will in a claim in which they ask the court to determine the validity of the will. (To propound a will means to take legal action to have it authenticated as part of the probate process.)
4. Upon hearing evidence, the court will pronounce as to the validity of that will. If the will is pronounced valid, the court will order the issue of a grant of probate

Question 11

Undue Infuence

Answer 11

1. Undue infuence is something that** overpowers the volition **of the testator. It is permissible to persuade a testator but not to coerce them.
2. Anyone alleging undue infuence has to show more than persuasion. They need to prove that there was** coercion or pressure **that overpowered the freedom of action of the
   testator. **

Question 12

4

FORMALITIES

Answer 12

1. *In writing (that is, handwritten, typed, or printed as op-posed to oral);
2. *Signed by the testator or by some other person in the testator’s presence and by their direction in a way that makes it appear the testator intended by the signature to give efect to the will;
3. *Signed or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
4. *Signed by each witness in the presence of the testator(but not necessarily in the presence of any other witness), or each witness must acknowledge their prior signature in the presence of the testator (again, not necessarily in the presence of any other witness).

Note that these rules do not apply to privileged wills, which can be made informally, even orally.

Question 13

Attestation Clauses

Answer 13

Usually an attestation clause will be included to confrm the the formality requirements have been met.. A typical clause states, “Signed by the
testator in our presence and then by us in his”. If an attesta-tion clause is not included in a will, the proponent of the will (that is, the person offering the will into probate) must offer proof that these formalities were followed—usually in the form of having one of the witnesses testify.

Question 14

Special Attestation Clauses

Answer 14

A special attestation clause is necessary for a** blind or illiterate** testator, to evidence that it was** read to them**, they understood and approved its contents, and they then signed or it was signed by another in the testator’s presence and at his direction.
EXAMPLE
“The testator being unable to read [or blind], this will was read to the testator and he stated that he understood it. It was then signed by the testator with his mark in our pres-ence and attested by us in the presence of the testator and in the presence of each other”.

Question 15

Form of Signature

Answer 15

Although usually the testator’s actual signature is used, a mark (for example, a thumbprint) can be used for someone unable to write. The following have all been held to be suf-fcient to amount to a valid signature provided that was the testator’s intention:
*Initials,
*A stamped signature,
*A mark such as a cross,
*An unfnished signature,
*A signature in pencil, and
*The words “your loving mother”

Question 16

Placement of the signature on will

Answer 16

Although usually the testator’s signature will appear at the end of the will, it may appear anywhere.

Question 17

3

Another Person May Sign on Testator’s Behalf

Answer 17

1, A person other than the testator may sign on the testator’s behalf provided the signature is made in the presence of, and by the direction of, the testator.
2. The person so signing may be one of the witnesses, though he need not be.
3. The testator must be present when the signature is made and must in some way indicate to the witness that the signature has been put there at his request.

Question 18

Witness Requirement

Answer 18

1. There are no formal requirements about the capacity of a witness, but they must be capable of understanding the signifcance of being a witness to a signature.
2. The witness-es do not need to see the contents of the will or even know that the testator is signing a will.
3. A blind person is incapable of being a witness to a signature, as the person’s blindness prevents them from witnessing the visible act.
4. Likewise, a mentally unsound person may not serve as a witness, but a witness’s subsequent loss of mental capacity does not affect the validity of a will that was witnessed by a person who was competent at the time of the witnessing.
5. An illiterate person is capable of being a witness, provided the person is aware that the testator is signing the document.
6. A benefciary of a will (or their spouse) should not be a witness

Question 19

INCORPORATION BY REFERENCE

Answer 19

A will may identify another document that, effectively, becomes part of the will. Such a document must exist at the date of the will and be** referred to in the will as so existing**—otherwise, it cannot be incorporated.