Execution of wills - validity, formalities etc Flashcards
what is a testratix/testator
Person creating a will
3 requirements for a valid will - basic
1) capacity - legal and mental
2) intention - general and specific
3) correct formalities followed - Wills Act 1839 s9
how to check if testator has 1) capacity?
a - legal cap - 18+
b - mental cap - concern for elderly, presumed unless fails Banks v Goodfellow test which says they must understand
1)nature of making a will
2)extent of their property (what they owned)
3)claims to which they ought to give effect (who relatives were)
What are the Golden rule safeguards?
Law society implemented them, recommends solicitors check certain details w (mostly elderly) clients to ensure they know what they’re doing and keep written records of discussions.
If concern over mental cap, get a Dr to act as witness to confirm they have MC.
Negligent if solicitor w elderly client fails to do this.
What are the 2 types of intention needed for a valid will and how can they be challenged?
General intention (to make A will) and specific intention (to make THAT particular will). Intention is presumed in most cases (unless blind, illiterate, didnt personally sign or suspicious circumstances-see BSG). High threshold to prove duress (threatened/injured) or undue influence (freedom of action of testator overpowered - note difficult to distinguish persuasion and coercion).
What are the correct formalities that must be followed to make a valid will?
1) must be in writing or typed, not oral
2) signed by testator (can be thumb print/cross etc, anywhere on will, and signed on testator’s behalf)…
3) …In presence of 2+ INDEPENDENT witnesses
4) signed by each witness in presence of testator - Attestation clause
what is an attestation clause?
Confirms the formalities of a will have been adhered to. contains name, the phrase
“Signed by the testator in our presence and then by us in his/hers”, address, profession.
Who cannot be a witness for the will?
Beneficiaries or their spouses - gift invalid if one is left to a witness.
What happens if testator had mental cap when giving instructions to will drafter but not upon execution? (BSG)
if the will is prepared in accordance with instructions, and at time of execution they understood they were signing for a will they previously gave instructions for, they are deemed to have acted w capacity.
What is a special attestation clause (BSG)
Necessary for blind/illiterate testators - evidences that it was read to them, they understood & approved its contents, and they then signed it or it was signed by another in their presence and direction
What forms of signatures have been accepted?
initials stamped signature marks e.g cross unfinished signature signature in pencil the words "your loving mother"
