section numbers and cases

Question 1

s9 WA - formalities for a will

Answer 1

• in writing
• signed by the testator in front of both witnesses
• signed by each witness in front of the testator, but not necessarily in each other’s presence

Question 2

s15 WA

Answer 2

if beneficiary or spouse of beneficiary witnesses the will, the gift will fail UNLESS:
- there are two additional witnesses not caught by s15 WA, or
- will is subsequently republished by a properly executed codicil with different witnesses, or
- professional executor is a witness (s15 WA won’t invalidate their remuneration)

further:
- the will remains valid
- beneficiary’s appointment as executor remains valid

Question 3

s28(4)(a) Trustee Act 2000

Answer 3

confirms s15 WA will not apply to the remuneration the professional executor will receive for acting in this role

Question 4

Banks v Goodfellow

Answer 4

a testator will have testamentary capacity if they:
- Understand the nature of the act
- Appreciate the extent of their property
- Are aware of the moral claims they ought to consider, and
- No disorder of the mind

Question 5

Parker v Felgate

Answer 5

exception to the rule that a testator should have capacity on execution of the will.

• testator must have had capacity when giving instructions
• testator must have known they were making a will in line with will instructions they had given previously

Question 6

Golden rule in Kenward v Adams

Answer 6

when taking instructions from a client who is elderly or seriously ill, A medical practitioner should be instructed to make an assessment of the testator’s capacity, and a contemporaneous record of the assessment and conclusion should be made.

Question 7

Wharton v Bancroft

Answer 7

Acknowledges that it can be challenging to find a practitioner willing to carry out the assessment

A failure to comply will not automatically demonstrate poor practice

Question 8

s18(1) MCA

Answer 8

statutory wills

authorises a court to make a will on behalf of someone who does not have the capacity to make one themselves

Question 9

s33 AEA

Answer 9

the PRs of an intestate deceased hold the undisposed of property on trust with power to sell

Question 10

s46 AEA

Answer 10

statutory order of entitlement:

1. surviving spouse/CP (by 28 days) and/or issue (lineal descendants - grandkids, legit, illegit, adopted, conceived but unborn)
2. parents
3. whole-blood siblings on the statutory trusts
4. half-blood siblings (share one parent) on the statutory trusts
5. grandparents
6. whole-blood uncles and aunts on the statutory trusts
7. half-blood uncles and aunts (shares one grandparent) on the statutory trusts
8. the Crown as bona vacantia

Question 11

s 46(2A) AEA

Answer 11

spouse’s entitlement under the intestacy rules depends on whether they survive the deceased by 28 days

Question 12

s 21 WA - manuscript alterations

Answer 12

no obliteration, interlineation, or other alteration made…after the execution…shall be valid or have any effect…except so far as the words…before such alteration shall not be apparent, unless the alterations shall be executed in like manner as…required for the execution of a will

Question 13

Cooper v Bockett

Answer 13

rebuttable presumption that unattested manuscript alterations were made after execution (and is therefore invalid) unless evidence is produced to rebut this

invalid&raquo_space; original wording is effective

Question 14

Lemage v Goodban

Answer 14

If there are no express words of revocation, there is a rebuttable presumption that the terms of the original will remain where possible

The codicil will only revoke an earlier will to the extent there is inconsistency between them

Question 15

How can a codicil correct problems with an earlier will/codicil?

Answer 15

• s15 WA effects can be avoided if codicil is witnessed by different witnesses who are also not beneficiaries or spouses of beneficiaries
• s21 WA effects on unattested alterations can be avoided, provided these are made before the codicil is executed, and the codicil must expressly refer to the alterations it confirms
• if due execution had not originally taken place, due execution of a codicil will validate the original will or previous codicil for s9 WA purposes

Question 16

s18 WA / s18B (civil partnerships)

Answer 16

Automatically revokes any will or codicil made prior to the marriage

Question 17

s18A / 18C WA

Answer 17

revocation by divorce/dissolution - will takes effect as if former spouse had predeceased the testator:
- appointment as executor or trustee is not effective
- any gifts will fail

Subject to any contrary intention expressed in the will

Question 18

s7 AEA

Answer 18

chain of representation applies where the testator (T) validly appoints an executor (E1) who dies with his own validly appointed executor (E2). E2 becomes the executor of T’s estate and E1’s estate.