Requirements of a Will Flashcards
re: distribution of property
what is the order of distribution on death?
- Property passing outside the will
- Property passing under the will
- Remaining property in accordance with the IR
re: distribution of property
what property passes outside the will?
o Joint property
o Insurance policies
o Pension benefits (i.e. lump sum if employee dies in services)
o Trust Property (TP)
re: distribution of property
explain joint property
i.e. the property is beneficially held as joint tenants (not tenants in common). Rule of survivorship applies.
re: distribution of property
explain insurance policies
if the sum payable on death is written in trust or assigned to named beneficiaries (B), this will not form part of the deceased’s (D) estate
re: distribution of property
explain pension benefits
(i.e. lump sum if employee dies in services) will pass in accordance with the letter of wishes, unless it is payable to the PRs. Then it will pass under the will / IR
re: distribution of property
explain trust property
if D has an interest in a trust which ends on death (i.e. a life interest), the TP is distributed in accordance with the original trust. It does not form part of D’s estate.
re: requirements for a valid will
what are the requirements?
- capacity
- intention
- formalities
re: requirements for a valid will
who has the burden of proof when a will is challenged?
If someone is challenging the validity of the will, the burden of proof (BOP) is on the person asserting the will is valid.
If presumption is satisfied, the BOP shifts onto the challenger
re: requirements for a valid will
where is the validity of a will challenged?
court
re: requirements for a valid will
how are the probate service involved?
- The validity of a will is challenged at court, but the probate service (PS) may ask for additional evidence before granting probate if they have any doubts
re: requirements for a valid will
what does it mean to ‘acknowledge a signature’?
confirm it is theirs
re: requirements for a valid will
when is execution?
when the will is signed
re: requirements for a valid will
what are the requirements for capacity?
At the time of execution, the testator (T) must:
o Be over 18 (there are some limited exceptions); and
o Have ‘soundness of mind, memory and understanding’
re: requirements for a valid will - capacity
what is meant by ‘soundness of mind’?
T must:
Understand the nature of their acts and effects;
Understand the extent of their property;
Understand the moral claims they ought to consider;
Not be suffering from any insane delusion
re: requirements for a valid will - capacity
what is the golden rule?
this is a good practice guideline. It proves that if there are any doubts as to T’s capacity, the solicitor should obtain a testamentary capacity report from a medical practitioner
the solicitor should:
o The solicitor should ask the doctor to witness the will
o They should also record their own view on the file
o This will be evidence if someone tries to challenge the validity of the will
re: requirements for a valid will - capacity
can a will be made if T lacks capacity?
- If T lacks capacity, a statutory will can be authorised by the COP under MCA
re: requirements for a valid will - capacity
what is the presumption of capacity?
it will be presumed T satisfied the mental capacity test if:
o The will is rational on the face of it; and
o T showed no evidence of confusion before making the will
A medical report / note from independent solicitor will suggest T had capacity
re: requirements for a valid will - intention
what are the intention requirements?
- T must have specific and general intention at the time of execution:
o General T intended to make a will (not another document)
o Specific T must know and approve the contents of that will
re: requirements for a valid will - intention
what is general intention?
T intended to make a will (not another document)
re: requirements for a valid will - intention
re: requirements for a valid will - intention
what is specific intention?
o T must know and approve the contents of that will
re: requirements for a valid will - intention
what can be grounds for challenge on the basis of intention?
An indication that T was pressured can be grounds for challenge that T did not know or approve the contents of the will
re: requirements for a valid will - intention
what presumption applies?
the presumption of knowledge
re: requirements for a valid will - intention
what is the presumption of knowledge?
if T has read the will and had capacity when it was executed, it is presumed T had the requisite knowledge and approval, unless:
o T is blind/illiterate/not signing personally
o There are suspicious circumstances i.e. the will was prepared by a B
re: requirements for a valid will - intention
when will the presumption of knowledge not apply?
o T is blind/illiterate/not signing personally
o There are suspicious circumstances i.e. the will was prepared by a B
re: requirements for a valid will - intention
if T is blind/illiterate/not signing personally, what is needed for GOP and what might the will include?
PS require evidence of knowledge & approval before giving GOP
It is usual for a will to contain a statement confirming the will was read to T who approved the contents
re: requirements for a valid will - intention
what must happen if the presumption of knowledge cannot be relied upon?
- If the presumption cannot be relied upon, they will need to provide alternative evidence T has the requisite intention
re: requirements for a valid will - intention
what will a challenger need to prove?
- The challenger will then need to prove the following:
o Force or fear (actual or threatened);
o Fraud (i.e. they have been misled)
o Undue influence
o Mistake
re: requirements for a valid will - intention
explain mistake
all or part of a will included by mistake. There is a difference between a misunderstanding and an actual mistake.
Actual mistake = an absence of knowledge and approval of the part(s)
re: requirements for a valid will - intention
explain undue influence
i.e. coercion or duress. Persuasion alone is not sufficient)
Difficult to prove. C will be penalised costs if they cannot evidence this.
re: requirements for a valid will
what is the Parker v Fletcher rule?
A will is void if T lacked capacity/intention when the will was executed, unless:
o T had capacity / intention when they gave their initial instructions;
o The solicitor who took the instructions is being used to execute; and
o T understand they are signing a will in line with their previous instructions
re: requirements for a valid will - formalities
what are the formalities?
A will will only be valid if (s9 Wills Act 1837):
o It is in writing
o Its is signed by T (or another person in T’s presence under their direction);
o T intended to give effect to the will by their signature;
o T’s signature must be made/acknowledged in the presence of two or more witnesses (W) present at the same time.
o Each W must sign or acknowledge their signature in the presence of T
re: requirements for a valid will - formalities
explain ‘in writing’
can be any form i.e. typed, braille, shorthand)
A copy only stored on a computer is unlikely to be ‘in writing’
re: requirements for a valid will - formalities
explain ‘it is signed by T or another…’
…or another person in T’s presence under their direction
Anything intended to represent T’s name is sufficient as a signature i.e. ‘your loving mother’ (as T could be identified), crosses, thumb print
T’s direction must be clear but can be verbal or non-verbal
re: requirements for a valid will - formalities
give an example in relation to ‘T intended to give effect to the will by their signature’
T doesn’t sign the will but writes their name on the envelope. Unlikely to be sufficient.
re: requirements for a valid will - formalities
what are the requirements for the witnesses to the will?
The Ws must:
Be aware T is signing a document (they need not know it is a will)
Be able to see T signing the document (clear line of sight)
T’s signature must be made/acknowledged in the presence of two or more Ws at the same time
re: requirements for a valid will - formalities
explain T signing/acknowledging their signature in the presence of 2 witnesses
i.e. T signs in front of 1 witness. Not valid. The 2nd witness enters the room and T acknowledges their signature. Valid.
re: requirements for a valid will - formalities
do witnesses need to sign in front of each other?
no
re: requirements for a valid will - formalities
what is the position regarding beneficiaries and witnesses?
if W is a B or spouse of B, the will is valid, but the gift fails
re: requirements for a valid will - formalities
what are the capacity requirements for a witness?
- No capacity requirements for W but they must understand the importance of being a witness
re: requirements for a valid will - formalities
must a will be dated?
- It is not a formality to date a will but is advisable
re: requirements for a valid will - formalities
is remote witnesses of a will allowed?
- Remote witnessing permitted for wills made on or before 31 Jan 2024
re: requirements for a valid will - formalities
give an overview of the procedure for witnessing a will remotely
Overview of procedure:
o Pre-recorded videos are not permissible, must be real-time
o T & Ws can be in different locations or some may be together
o E-signatures not permitted.
o T must physically sign/acknowledge an earlier signature virtually before Ws
o The will must be taken or posted to Ws
o Ws physically sign will in the virtual presence of V
re: requirements for a valid will - formalities
when will a will fail in relation to remote witnessing?
- The will is not executed and valid until everyone has signed.
o If T dies before this the will fails
re: requirements for a valid will - formalities
what is a privileged will?
- i.e. wills made on actual military service or by a mariner or seaman at sea
- These wills do not need to comply with s9 formalities, they can even be oral
re: requirements for a valid will - formalities
what are the requirements for privileged wills?
- These wills do not need to comply with s9 formalities, they can even be oral
- The only requirement is that T intends to dispose of their property after death
re: requirements for a valid will - formalities
what is the presumption of due execution?
if there is an attestation clause, it is presumed the s9 formalities are met
re: requirements for a valid will - formalities
what is the effect if there is no attestation clause?
it does not mean the will is invalid, but more evidence is needed
The probate will require an affidavit of due execution or witness statement verified by a statement of trust from a W or anyone present at execution
re: requirements for a valid will - formalities
if there is no attestation clause and it is not possible to obtain an affidavit of due execution from a witness, what is needed for GOP?
an affidavit of handwriting evidence to identify T’s signature or they will refer the case to a judge
