Formalities Flashcards
What are the formalities laid out in Section 9 of the Wills Act 1837
a valid wil must:
- be made in writing and signed by T or some other person in his presence and by his direction
- it must appear that the testator intended his signature to give effect to the will
- the signature is made or acknowledged by the testator in the presence of two or more witnesses presents at the same time
- each witness either
- attests and signs the will
-acknowledges his signature in the presence of the testator (not necessarily in the presence of any other witnesses
What is the effect of a will written partly in ink and partly in penci
If a will is written partly In ink and partly In pencil, the presumption will be that the pencilled parts were not intended to be final and should therefore not be admitted to probate unless there is evidence that the testator intended them to be final
Is a photocopied signature considered valid ?
No- unless the absence of the original is explained
Under rule 54 of the Non-contentious probate rules 1987, probate may still be granted based on a copy of the will if supported by _____
affidavit evidence
What are the conditions on which a will be signed by a third party?
testator must be physically and mentally present.
Attestation clause must fully explain the circumstances.
testator must actively direct TP to sign through clear communication, whether verbal or non-verbal
Do the witnesses need to see what T is writing
No. it is sufficient that the testator is aware that the testator is writing
What is the minimum requirement for acknowledging a signature by T
no specific words or actions required.
Simple nod or requesting witnesses to sign can suffice
Where witnesses acknowledge the will is there a need for attestation?
No
What is attestation?
testator signs in the presence of two witnesses, who then attest and sign their signatures in the testator’s presence.
What is needed to obtain a grant of probate where there is no attestation clause
attestation clause should be adapted to confirm the will was read to the testator, understood and approved before being signed
Can a blind person witness a will
No
If a witness at the time of witnessing or any later time is deemed legally incompetent to testify about the wills execution, does this invalidate the will?
No
What are the requirements of a minor being eligible to witness a will
- must have mental capacity
- understanding of the significance of the role
Can a creditor/executor witness a testators will
yes
What is the effect of a beneficiary / spouse of beneficiary witnessing the will?
The beneficiary will lose his benefit under the will
What are the exceptions to the beneficiary/spouse of beneficiary rule
if a witness marries a beneficiary after the wills execution, gift remains valid
if there are at least two other non-beneficiary witnesses , the gift is unaffected
( if only one of three witnesses is a beneficiary or married to a beneficiary, the beneficiary can still receive the gift)
What is a letter of wishes
private information doc addressed to family members, trustees, executors - it expresses the testators preferences or reasoning but not legally binding and does not require witnesses . does not become public. Can be evidenced if will is challenged
What are privileged Wills?
wills that are made by privileged testators and exempt from the formal requirements in s9 of the 1837 act.
What are the three classes of privileged testators?
- Soldiers in actual military service
- Any mariner or seaman being at sea
- Members of the naval or marine forces in actual military service
Are minors in privileged groups able to make valid wills
Yes - but cannot dispose by will of a fee simple interest in land
What is a Foreign will?
wills that are formally valid under the law of another jurisdiction with which the testator has a connection. recognised under English law
What is the general rule concerning foreign wills
a will is formally valid if it conforms to the law of the jurisdiction
1) in which it was executed
2) in which the testator was domiciled or habitually resident
3) of which testator was a national
What is a Mutual Will?
a way for two or more people to make wills in a way that prevents the survivor from changing his or her will after the death of the first person
What are the three requirements for a valid mutual will?
1) two or more persons execute wills pursuant to an agreement which may be oral or in writing, but must be in writing if it concerns a disposition of land
2) The parties agree that the survivor shall be bound by the arrangement
3) the first party dies
What is the effect of a mutual will before and after death of one testator
before death - mutual wills amount to a contractual agreement (consideration is. mutual promise)
After death - a constructive trust is imposed on the second testator for the benefit of those who were intended to benefit under the agreement , this prevents the testator from reneging on his or her promise to the first testator.
What is the effect of remarriage of the second testator
trust remains intact and is unaffected - surviving testator is still bound by the arrangement
- although mutual will is revoked by the operation of law
