MCT Lectures 1-3 recap Flashcards
What are the requirements for capacity when making a valid will?
The testator must be at least 18 years old and have mental capacity. They must understand the nature of their act, the extent of their property, and the claims to which they ought to give effect.
What is the “material time” to determine if a testator has mental capacity?
The material time is usually when the will is signed, but in some cases, it can be when the testator instructed the solicitor, as long as they understood they were signing a will for which instructions had been previously given.
Can a will prepared by a solicitor still be invalid?
Yes, a will prepared by a solicitor can still be invalid if the testator lacked capacity at the material time.
What is the difference between intention and capacity in will-making?
Intention refers to the testator’s purpose or goal in making the will, while capacity refers to their legal and mental ability to make a valid will.
Can a blind person act as a witness to a will?
No, a blind person is not capable of acting as a witness to a will.
Can a will be validly signed in pencil or with a nontraditional signature?
Yes, a will can be signed in pencil, and signatures using a cross, initials, a stamp, or an unfinished signature have all been recognized as valid.
What is the importance of an attestation clause in a will?
An attestation clause is not a requirement, but its absence means that the person offering the will into probate must provide proof that the correct will execution formalities were followed, usually through testimony from one of the witnesses.
What is a general legacy?
A general legacy is a gift in a will that does not identify a specific item, typically a sum of money or a particular asset, such as a car or property.
Does the doctrine of ademption apply to general legacies?
No, the doctrine of ademption does not apply to general legacies.
What happens when a testator does not own the item specified in a general legacy at the time of their death?
The beneficiary is entitled to require the executor to purchase the specified item for them if there are sufficient funds in the estate.
What is the doctrine of lapse?
The doctrine of lapse arises when a beneficiary dies before the testator, causing the gift to fail and become part of the residuary estate or pass under the rules of intestacy if there is no residuary estate.
What is a class gift?
A class gift is a gift in a will made to a group of individuals who share a common characteristic, such as being the testator’s nieces and nephews or the children of a specific person.
What are the Class Closing Rules?
The Class Closing Rules determine when the class of beneficiaries closes for the purposes of dividing a class gift. The class usually closes at the date of the testator’s death if at least one beneficiary has a vested interest.
When is a gift considered vested?
A gift is considered vested when the beneficiary has an unconditional right to receive the gift, with no further conditions to be satisfied.
How are class gifts divided among beneficiaries when the class closes?
Class gifts are typically divided equally among the living members of the class at the time the class closes. If a child was conceived at the time of the testator’s death and subsequently born alive, they are also considered part of the class.
