Formal Validity of Wills Flashcards
(41 cards)
What does complying with formalities do?
- Ensures testator protected from undue influence
- Serves as evidence of intention
Privileged wills
Those written by people under age but married or in military
Attested wills
Most common form. Formal wills, attested means witnessed by other people
Writing requirement
Will valid only when in writing
What does in writing mean?
Printed, painted, lithograph, photographed, represented, reproduced in any visible form
Murray v Halo
” (ditto mark)= writing, same as above
Re Harris
Not specified what writing has to be on. Trapped under tractor and scratched onto tractor.
Signature Requirement
- Don’t care about form of signature care about intention to give effect to the will
- So long as sufficient evidence it was best testator could do and that it constituted intention its okay
Amanuensis
Someone who signs a will on behalf of another
-Can either sign your name or theirs, what’s important is you were asked to do it
Re White
Facts: T had a stroke, could mentally affirm but physically could not sign. One of witnesses helped him move his hand to make a mark.
Ratio: A direction to sign a will has to be given in the presence of witnesses and testator has to be physically present telling them to sign
Position of signature
Do not sign at the top then write it. Gift under signature or clearly established in handwriting generally not validated- inference that your wrote it after. Can prove otherwise but uphill battle
Re Riva
Demonstrates that courts will try to give effect to weird signatures. Portion she wanted to sign too small so signed the side.
Yen Estate
Facts: 4 daughters and one was murdered rewrote, granddaughter wants intestacy for tries to invalidate
Omnia Prae: all things are presumed to have been done correctly. Can be relied upon when no evidence whether or not they signed before or after disposition written in.
What is the standard?
Balance of probabilities- if it looks like testator signed last even if position is off they will probate
How many witnesses for attestation?
2
Process
Testator makes/ acknowledges signature in front of 2 witnesses present at the same time. Must see testator sign.
Witnesses signature
Have to sign in the presence of the testator, testator must see witness sign
Chesline v Hermastin
Facts: dispute as to the order in which parties signed and whether or not even saw testator sign. Evidence showed one witness in a rush signed before testator.
Ratio: not probated, signature of testator must be written or acknowledged by the testator in the actual visible presence of each witness together before either of them attests the will
Age requirement for witness?
Must be age of majority
Re Gunston
Facts: neither witness saw signature when they came in T was lying down her pen, did not see signature and she did not talk about signing it
Ratio: Not sufficient acknowledgement unless witnesses saw or might have seen signature—not sufficient to say “my signature is in there” if they could not see it. Don’t need to see it but need opportunity to see it.
Beneficiaries/ Executors as witness
Not invalid but may invalidate specific gift
Incorporation by reference
Exception if the document is unattested/ otherwise does not conform with formalities. May be incorporated into valid will by reference.
Rules to incorporate by reference
1) Document you are seeking to incorporate by reference has to exist at time you make your will (has to predate will)
2) Will must refer to this document/ specify that it already exists (shouldn’t be one subject to change)
3) Document must be referred to with sufficient precision on the will (give specifics and sufficiently describe it so court can identify it)
Re Goods of Smart
Facts: wanted to incorporate a book but didn’t exist at time of will. Made codicil but still didn’t mention book
Ratio: Incorporation cannot use future language. Not sufficient to confirm will in codicil if will continues to refer to document in future tense
