Module 1 Flashcards

1
Q

Anyone with testamentary capacity can make a will. This is basically anyone but with some exceptions. What are those exceptions?

A
  1. Persons under 12. Testamentary capacity for children over 12 is provided by s2 of the Age of Legal Capacity (Scotland) Act 1991.
  2. Insane persons, unless they make the will in a “lucid” interval” (which is ext. difficult to prove). Once case where they were able to show that the person had recovered from his previous state of general insantity to be of sufficient sound mind to make a will was Nisbet’s Trustees v Nisbet (1871).
  3. In a non generally insane person but where eccentricity or delusion amounts to incapacity. The Will must be shown to have been the outcome of the special delusion. “It is not sufficient that the man who disposes of his property should be occasionally the subject of delusion. The delusion must be shown to have been actual and impelling influence.” (Sivewright v Sivewright’s Trustees (1920). The particular deluion must be shown to have actually influenced the terms of the will.
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2
Q

Adults are deemed to have capacity (Bells Principle) Section 21.03 and AB v CB. This can be rebutted but who has the onus to do so?

A

The party claiming incapacity.

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3
Q

Test for testamentary capacity set out in Banks v Goodfellow (1980) (English decision) but commented upon favourably in Scotland eg in Sivewright v Sivewright Trustees (1920)

A

Banks v Goodfellow (1980). Individual suffered from an insane delusion that he believed he was being pursued by demons that no-one else could see. Asylum but subs released but still suffered from same insane delusion. C of Appeal:

Essential (for capacity) that:

  1. the testator will understand the nature of the Act and its effects;
  2. shall understand the extent of the property of which he is disposing;
  3. shall be able to comprehend and appreciate the claims to which he ought to give effect.
  4. that no disorder of the mind shall poison his affect, pervert his sense of right or prevent the exercise of natural faculties
  5. No insane delusions shall influence his Will in disposing of his property, and bring about the disposal of it which, if the mind had been sound, would not have been made.
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4
Q

Cof A in Sharp v Adam (2006) stated the Banks v Goodfellow tests had withstood the test of time. It also referred to one golden rule which should always be observed. What was the golden rule?

A

In the case of an older testator or a testator who has suffered serious illness, the making of a Will ought to be witnessed or approved by a medical practitioner who satisfies himself of the capacity and understanding of the testator and records and preserves his examinations and findings. This is suggested appropriate professional practice but not formally adopted in law and Sharp v Adam (CofA) rejected suggestion that the golden rule “should in principle be determinative…..”not a rule of law giving conclusive status to the evidence obtained in compliance with the rule” - reiterating it is a rule of solicitors good practice.

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5
Q

The golden rule is not absolute but if undertaken:

A

it would require very persuasive evidence to enable the court to dislodge the conclusion reached by the professional people at the time the will was prepared. (Kenward v Adams)

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6
Q

Does the assessment and final judgement on whether or not capacity exists lie with the medical profession?

A

No. (will be persuasive evidence if done under the golden rule above). IN Birkin v Wing the court preferred the judgement of a solicitor who had taken instructions against the wishes of a doctor.

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7
Q

What status does a will have which is made by a person of non-age

A

void ab initio

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8
Q

What status does a will have which is made a person where lack of capacity (unsound mind) is proven to the court.

A

Void

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9
Q

Grounds for reduction of a will. What are they?

A
  1. Will made by a person of non age
  2. Person is not of sound mind and lack of capacity is proven to the court.
  3. The Will is a forgery
  4. Facility AND fraud or circumvention (facility alone is not enough)
  5. Undue influence.
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10
Q

What is Facility?

A

It is not the same as incapcity but does require that there be some weakness of the mind on the part of the testator, with the result that he can be easily led into making a Will of a particular type.

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11
Q

Morrison v McLean’s Trustees (1882). What was the question formulated by the Court?

A

Whether the defender, taking advantage of the testator’s weakness and facility procured the deed by fraud or circumvention.

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12
Q

Wheelans v Wheelans

A

Persuasion by the interested party might in itself amount to circumvention where there was a high degree of facility on the part of the testator.

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13
Q

How does Undue Influence differ from facility and circumvention?

A

There is no need to lead evidence regarding the state or weakness of mind.

Ross v Gosselin’s Executors (1926):

The essence of circumvention and facility is that the person practices on the debility of another whose individuality is impaired by infirmity or age, and moulds the inclinations of the latter to his own profit.

The essence of undue influence is that a person, who has assumed or undertaken a position of quasi fiduciary responsibility in relation to the affairs of another, allows his own self interest to reflect the advice or guidance he gives in his own favour.

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14
Q

Quasi Fiduciary

A

1.Does not have to be professional and client
2.Has been held to be a spiritual advisor and his practitioner (Allcard v Skinner), a housekeeper (Horne v Whyte), a parent towards a child (Allan v Allan), child to a parent (Grant’s Executors v Grant) and a taxi driver (Gaul v Deerey)…so undue influence does not need to be exercised by an individual like a lawyer, accountant or minister or priest.
3. Honeyman’s Executor v Sharp, the relevant relationship coul arise:
“where a person, in pursuance of his profession or calling undertakes the giving of advice to another and where, as a result there develops a relationship between the advisor and the advised in which the latter places trust and confidence in the former.”

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15
Q

Requirements for a Will

A
  1. Testamentary Capacity
  2. Testamentary Intent (ie that the will displays an intention for the payment to be made on the death of the granter.
  3. Subscription. ie the Will be SUBSCRIBED (ie signed AT THE END as it shows that the testator has finally made up his or her mind (Taylor’s Executrices v Thom 1914) The signature will be insisted on by courts no matter how informal the Will otherwise be) (words added below a signature were invalid in McLay v Farrell)
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16
Q

Testamentary Intention

A

A court will look at the words for testamentary intention - eg if the document is headed “my will”, or appointment of Executors or references to bequests. Each case will depend on its own facts. Letter to a Sol saying draw up will in these terms was regarded as simply a letter of instruction to make a will in Munro v Coutts (1813) but having testamentary intention in Rhodes v Peterson 1971. It is a difficult area.

17
Q

The Requirements of Writing (Scotland) Act 1995 is effective from what date?

A

1st August 1995. Wills made before this date are dealt with under old law.

18
Q

Pre 01/08/95: A Will could be valid if executed in one of 4 methods. What are they?

A
  1. Attested - ie signed on every page by the granter before two witnesses who signed on the final page only.
  2. Holograph - ie written out in the granter’s own handwriting and subscribed by him.
  3. Adopted as Holograph - ie typed or handwritten by another person BUT must be signed and “adopted as holograph” by the testator.
  4. Notarial execution on behalf of an individual who was blind or unable to write for any reason.

Signature did not need to be at the same time as long as the witness was present when the will was signed (and witness can not sign after the death even if he had seen the testator sign (Walker v Whitwell). But then and no, no need to actually see the granter signing as long as the granter acknowledges (within a fairly short period of time) that hte signature ot the document is his.

19
Q

After 01/08/95: A will could be valid by

A

just being signed on the last page by the testator and clearly demonstrates testamentary intent. Because it has not been witnessed it will need to be set up in accordance with Section 4 of 1995 Act - ie presentation of an Affadavit to the Court confirming handwriting and signature of the deceased by someone well acquainted with it.

20
Q

Self Proving Will

A

Is signed on every page and witnessed on the last page by one witness.

21
Q

After 01/08/95 granter and witness’ signature should be

A

“one continuous process or declaration”

22
Q

Requirements of witnesses for 1995 Act:

A
  1. The witness shall know the granter (an introduction by a 3rd party will suffice)
  2. The witness is over 16
  3. The witness shall be mentally capable of witnessing.
  4. The witness shall witness the granter signing, or hear an acknowledgement of the signature.
  5. It shall be a continuous process.
  6. The witness will not be named in the document as a granter. (but can be a beneficiary or an Executor but not recommended(!) other than in emergency as may risk facility and circumvention or undue influence.
  7. The witness’s name and address shall be correctly given.
23
Q

Can a blind person sign his own deed?

A

Yes (Ker v Hotchkiss 1837). Also NB there is a different procedure for execution of wills for blind people post 1995- S9 and it applies to someone not able to write too.

Also before 1995 if someone signed on behalf of another and had a financial interest of any kind in the Will, it fell in its entirety because the person signing had a disqualifying interest. All innocent beneficiaries missed out.

Post 1995. Just the person signing would lose his interest. and if the financiall interest was in favour of a relative or spouse of the person signing, those bequests to those persons would fall and not other innocent beneficiaries. (s9)

24
Q

Requirements of Writing (Scotland) Act 1995:

S1(2):

A

Provides that a written document complying with S2 is required for making a …Will.

25
Q

Requirements of Writing (Scotland) Act 1995:

S3

A

Presumption as to granter’s subscription.