General Will Drafting

Question 1

What are the legal requirements for a valid will?

Answer 1

1. Formality: S.9 Wills Act 1837, a will must:
   Be in writing
   Signed by T (or acknowledged by T) in the presence of two present witnesses, who must also sign.
2. Mental capacity: Banks v Goodfellow (1870):
   Understand the nature of making a will.
   Understand the extent of their property.
   Understand the moral claims of those they ought to provide for.
3. Intention: Must reflect T’s actual intentions > where knowledge and
   approval lacking, the will is invalid.
   If T possesses requisite mental capacity - presumed to have had
   knowledge and approval.
   However, no presumption if there are suspicious circumstances (Wintle v Nye [1959]).

Question 2

How can testamentary capacity be safeguarded?

Answer 2

Golden Rule (Kenward v Adams 1975, Re Simpson 1977) (instructing a doctor to be present when drafting the will).
Approved by a medical practitioner (MD) - completely satisfied that the client has testamentary capacity > MD will then record this examination and finding, and it will be recorded on the solicitor’s file.