SQE: Wills 1: Execution and alteration

Question 1

What are the requirements for a valid will (general)?

Answer 1

Testator must have:
- had capacity at time the will was executed;
- Intended to make a will; and
- Executed the will in accordance with formalities.

Question 2

What is the test for capacity of testator when creating a will, and when might it be used?

Answer 2

Test

At time of executing will, T must have understood:
- The nature of the act;
- The extent of their property; and
- The claims to which they ought to give effect (ie. who they would normally give gifts to)

When used:
- Capacity will be presumed unless someone challenging the validity of will proves that the testator lacked capacity

Question 3

At what time must testator have had capacity to make creation of a will valid?

Answer 3

Generally at the time of signing the will.

Exception:
When they had capacity when instructing the will but not when they later signed it

Capacity will be deemed if:
- the will was prepared in accordance with those instructions; and
- the testator understood they were signing a will for which instructions had previously been given

Question 4

What must be shown to prove testators intention when creating valid will? When might this be tested?

Answer 4

Intention Present if Testator had:
- General intention to make a will
- A specific intention to make the particular will (i.e. knew and approved the contents of the will when executing)

Generally there is a rebuttable presumption of intention (subject to exceptions)

Question 5

When might a testators intention to create a valid will not be presumed?

Answer 5

Presumption does not apply:
1. If T is blind/illiterate

2. Will is signed on their behalf (should include attestation clause)
3. If there are suspicious circumstances, such as where the will drafter substantially benefits from the will (gift will fail unless evidence is presented)

Question 6

What are the grounds for challenging testators intention for creating valid will?

Answer 6

Fear
Force
Fraud
Undue Influence

Question 7

When may a will created under force or fear be valid?

Answer 7

If a challenger propounds (ie. starts legal proceedings) and succeeds in having a court pronounce it is valid and issue grant of solemn form.

Question 8

What must you show to prove undue influence in the intention of the creation of a will?

Answer 8

• Must show that there was coercion or pressure that overpowered the freedom of action of the testator
• Court more likely to find it where testator is weak (physically or mentally)
• Court will also intervene if testator surrendered to intolerable pressure

Question 9

What are the formalities for creating a will?

Answer 9

Valid will must be:
- In writing;

• Signed by testator or other person in testators presence and by their direction
• Signed or acknowledged (tell them and show signature) by testator in presence of two or more witnesses present at same time
• Signed by each witness in presence of testator (but not necessarily each other)

Question 10

What is an additional formality for the creation of a will for a blind or illiterate testator?

Answer 10

Special attestation clause stating that:
- Will was read to them;
- They understood and approved of its contents;
- They signed or it was signed by another in their presence and at their direction.

Question 11

Who needs to sign a will and what are formalities?

Answer 11

Testator
- either themselves in presence of witnesses, or acknowledged by witnesses (T must verbally show and tell)
- by another in presence of T, at T’s direction and T must indicate this to witnesses

Witnesses
- must be in presence of T (not necessarily other witnesses)

Question 12

What the requirements/restrictions on who can be a witness for signing of Will?

Answer 12

• must be able to understand significance of being witness (this excludes young children although children act act)
• need not see content or know it is a will

Cannot be:
- blind
- mentally unsound
- a beneficiary or wife of beneficiary (or their own gift will fail)

Question 13

Can outside documents be included in a Will?

Answer 13

Yes, if:
- Other documents can be identified by will and effectively become part of will
- Must exist at date of the will and be referred to in the will as so existing

Question 14

What the requirements for a valid alteration to a will? How can this be proved?

Answer 14

To be valid alternation must be:
- Made before execution; and
- Read naturally after amendment is made

Proof
- Have testator and witnesses sign/initial the alternation,
- Statements from the witnesses

CAN be made AFTER Execution
- if executed as a will (signed by testutor and witnesses etc.)

Question 15

What happens if alternation is made without proper requirements?

Answer 15

• presumed to have been made after execution unless it is filling in a black space
• Og clause (that has been altered) will prevail if it is still visible
• if not visible then that part treated as revoked

Question 16

What is a Codicil and what are requirements to make it? How might it modify a will?

Answer 16

• Codicil must make reference to the will;
• Clause should be included in the codicil confirming the unamended part of the will; and
• Codicil may remedy a gift which was void because the beneficiary witnessed the will.

Must also meet formalities of will proper
- In writing;
- Signed by testator or other person in testators presence and by their direction
- Signed or acknowledged by testator in presence of two or more witnesses present at same time
- Signed by each witness in presence of testator (but not necessarily each other)

Question 17

When will a will be automatically revoked?

Answer 17

Marriage
- Exception: Not if will states that the testator is expecting to marry X and they intended that all or part of the will should not be revoked

Divorce (unless stated to contrary in will)
- spouse treated as if dead

Question 18

What deliberate acts may revoke a will?

Answer 18

Execution of new will/codicil
- only revokes old clauses that are inconsistent or restated
- can include express revocation clause to fully revoke

Act of Destruction
- either just the clauses damaged or full thing if vital part destroyed
- only if T has intention at time to revoke it
- descrution must be in thier presence

Question 19

What happens will is found:
1. mutilated at date of death
2. was last with T and missing after death

Answer 19

1. rebuttable presumption that this was done to revoke it
2. rebuttable presumption it was destroyed with intention to revoke

Question 20

When might court stop will from being revoked?

Answer 20

Court may apply doctrine of dependant relative revocation to save a will when:
- Testator’s intention to revoke their will was conditional upon a future event, such as later execution of new will;
- If that event did not take place, original will may valid (even if it was destroyed but can be reconstructed from copy or draft)

Question 21

Mutual vs Mirror Wills

Answer 21

Mirror Will
- mirror each other (everything to wife/husband and upon thier death to children)
- CAN be changed by either at any time

Mutual Wills
- written by two people in agreement that it cannot be amended or revoked
- must show clear evidence they understand above
- can only be amended with other parties consent
- if breached imposes constructive trust in favour of og beneficiaries