MCT Flashcards
What do you need to create a valid will?
Testator must have capacity, intention to make a will, and follow execution formalities
Basics of Capacity
Testator must be 18+ (except for privileged wills) and have mental capacity
Presumed to have mental capacity unless proven otherwise
Test for Capacity
- At the material time, the person lacks capacity if there is an impairment or disturbance of the brain
- the understand the will and have capacity, the testator must: know the extent, nature and claims of the will
Material Time
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
Basics of Intention
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
Rebuttable Presumption of Knowledge and Approval
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
Circumstances Where Presumption of knowledge Doesn’t Apply
Testator is blind, illiterate, or the will is signed on their behalf
Suspicious circumstances, such as will drafter benefiting substantially from the will
Example of challenging a will
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
Gifts to Solicitors
Solicitors should refuse to act if any client offers a gift to a fee earner (worker) in a law firm
Avoids conflict of interest
Duress
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
Undue Influence
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
Formalities of a Valid Will
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
Attestation Clauses
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
Special Attestation Clauses
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