MCT Flashcards

1
Q

What do you need to create a valid will?

A

Testator must have capacity, intention to make a will, and follow execution formalities

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2
Q

Basics of Capacity

A

Testator must be 18+ (except for privileged wills) and have mental capacity

Presumed to have mental capacity unless proven otherwise

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3
Q

Test for Capacity

A
  1. At the material time, the person lacks capacity if there is an impairment or disturbance of the brain
  2. the understand the will and have capacity, the testator must: know the extent, nature and claims of the will
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4
Q

Material Time

A

Usually when the will is executed (signed)

If testator had capacity during instruction but not execution, still valid if they understood they were signing a will for which instructions had been given

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5
Q

Basics of Intention

A

Testator must have general intention to make a will and specific intention to make the particular will

Testator must have known and approved the contents when executing the will

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6
Q

Rebuttable Presumption of Knowledge and Approval

A

It is presumed that testator acted with knowledge and approval if they had mental capacity

Challenger must prove lack of proper intention due to fear, fraud, undue influence, or mistake

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7
Q

Circumstances Where Presumption of knowledge Doesn’t Apply

A

Testator is blind, illiterate, or the will is signed on their behalf

Suspicious circumstances, such as will drafter benefiting substantially from the will

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8
Q

Example of challenging a will

A

Sharp v Hutchins: court found sufficient evidence of testator’s knowledge and approval. Will was easy to read, there were two witnesses and the testator had time to revoke the will so therefore the court said it was legitimate

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9
Q

Gifts to Solicitors

A

Solicitors should refuse to act if any client offers a gift to a fee earner (worker) in a law firm

Avoids conflict of interest

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10
Q

Duress

A

Duress occurs when testator has been injured or threatened with injury

It can only be accepted in law (probate) if the court grant special approval (grant in solemn form)

To get this, parties interested in the will have to apply to the court

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11
Q

Undue Influence

A

Undue influence- need to show that there has been coercion, not just persuasion.

To prove undue influence, one must show coercion or pressure overpowered the testator’s freedom of action

Court more inclined to find undue influence when testator is physically or mentally weak

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12
Q

Formalities of a Valid Will

A

Must be in writing (handwritten, typed, or printed)
Signed by testator or by another person in testator’s presence and direction

Signed or acknowledged by testator in the presence of at least two witnesses present at the same time

Signed by each witness in the presence of the testator or each witness must acknowledge their prior signature in the testator’s presence

Note: Privileged wills can be made informally, even orally

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13
Q

Attestation Clauses

A

Attestation clause confirms formal requirements of a will

Typical clause: “Signed by the testator in our presence and then by us in his”

If no attestation clause, proponent of the will must offer proof that formalities were followed

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14
Q

Special Attestation Clauses

A

Necessary for blind or illiterate testator

Evidence that will was read to them, they understood and approved its contents, and then signed or had it signed by another in their presence and at their direction

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15
Q
A
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