The Valid Will

Question 1

What property passes independently of the will/ intestacy rules?

Answer 1

1. Joint property held as joint tenants in equity (will pass by survivorship to the surviving joint tenants).
2. Life assurance policies.
3. Pension benefits.

Question 2

What must the testator do to create a valid will?

Answer 2

1. Necessary capacity.
2. Necessary intention.
3. Observed the formalities laid down in the Wills Act 1837.

Question 3

Capacity

Answer 3

1. Aged 18 or over.
2. Have the necessary mental capacity.
3. Must not be suffering from any insane delusion which affects the disposition of property.

Question 4

Test for mental capacity

Answer 4

Banks v Goodfellow (1870)

1. The testator must have understood:
   a) the nature of the act and it’s broad effects
   b) the extent of their property (not necessarily recollecting every individual item)
   c) the moral claims which he ought to consider

Question 5

Parker v Felgate (1883)

Answer 5

Upheld in Perrins v Holland (2010).

1. It is sufficient to show that requisite mental capacity existed at the date of giving instructions for the preparation of the will.
2. The will was prepared in accordance with those instructions.
3. At the time of the execution, the testator understood that he was signing a will for which instructions had previously been given.

Question 6

Capacity - Rebuttable presumptions

Answer 6

1. Rational well – capacity is presumed where a duly executed will appear is valid.
2. Mental illness continues.

Question 7

Capacity - Proofs and presumptions

Answer 7

1. The onus of proving the existence of mental capacity lies with the person seeking to prove the will.
2. Presumption that where a person showed no sign of mental confusion they had the relevant capacity when they made the will.
3. A person must be assumed to have capacity unless it is established that they lack capacity.

Question 8

Lack of capacity

Answer 8

Where capacity is not presumed or proven the will cannot be admitted to probate.

Question 9

Intention

Answer 9

When the will is signed the testator must have:

1. General intention to make a will
2. Specific intention to make that particular will
3. Testator must know and approve the contents of the will

Necessary knowledge and approval must have existed at the date of execution of the will (unless Parker View Felgate exception applies).

Question 10

Intention- Proofs and presumptions

Answer 10

1. Onus of proof is on the person seeking to prove the will.
2. Presumption that a testator with necessary mental capacity executed the will having read it, is presumed to have the requisite knowledge and approval of its contents (this is rebuttable with evidence to the contrary).

Question 11

Intention- where the presumption does not apply

Answer 11

Where the will was made (or a particular clause in it) as a result of:

1. Force, fear or undue influence
2. The necessary knowledge and approval were lacking as a result of a mistake
3. Testator is blind or illiterate or someone has signed the will on their behalf (can be dealt with by an attestation clause)
4. Suspicious circumstances (Will substantially benefits the person who prepared it)

Question 12

Formalities of a valid will

Answer 12

S9 wills Act 1837

1. Will must be in writing
2. Signed by the testator or a person in his presence and by his direction
3. It appears that by his signature the testator intended to give effect to his will
4. The signature is made or acknowledged by the testator in the presence of two or more witnesses at the same time
5. Each witness either a test and sign the will or acknowledge their signature in the presence of the testator
6. Does not apply to privileged wills

Question 13

Witnesses

Answer 13

1. Must be capable of understanding the significance of being a witness to a signature
2. Beneficiaries. And those married to beneficiaries should not witness the will as they will lose any gift, S15 Wills Act 1837. 

Question 14

Codicil

Answer 14

1. Can be used to add to, amend or partially revoke the terms of an existing will.
2. Requirements for a valid codicil are identical to those for a valid will

Question 15

Revocation

Answer 15

1. Wills are revocable at any time (as long as the testator retains mental capacity)
2. By later will or codicil S20 Wills Act 1837
3. Can occur automatically by operation of law- marriage/civil partnership (S18 Wills Act 1837) unless made in contemplation of marriage
4. By deliberate act of the testator
5. Destruction S20 Wills Act- “burning, tearing or otherwise destroying”. There must be an act of destruction and intention to revoke at the time of the will’s destruction.

Question 16

Divorce/ dissolution of civil partnership or nullity

Answer 16

Wills Act 1837 S18A
The will remains valid- however:
1. The former spouse/civil partner is treated as if they had died on that date of the decree absolute
2. Any property left to the former spouse or civil partner passes as if the former spouse or civil partner had died on that date

Question 17

Effective alteration

Answer 17

1. Prior to execution

2. After the will but duly executed

Question 18

Ineffective alterations

Answer 18

1. Unattested and made by the testator after execution and does not amount to obliteration
   2. Made by someone other than the testator and without his knowledge and approval
2. Made by testator without the intention to revoke

Question 19

Consequences of an invalid alteration

Answer 19

1. Original wording must be apparent
2. Wording is apparent if it can be deciphered by natural means
   If so it can be admitted to probate. If not will admitted to probate with blank space where the obliteration occurred

Question 20

Types of legacy

Answer 20

1. Specific- gift of particular property owned by the testator distinguished from other property (“my”)
2. Ademption- if at death the testator no longer owns the property which is the subject of a specific legacy the gift fails
3. General- gift of property not distinguished from other property – if the property is not owned at death the state is required to purchase it for the beneficiary
4. Residuals- remainder of the testate is property not disposed of by any other legacies

Question 21

Failure of a gift under a will

Answer 21

1. Wording uncertain
2. Contrary to public policy/ forfeiture
3. Ademption of specific gift
4. Beneficiary pre-deceases testator (is there a substitutional provision in the will or by S33 Wills Act- only applies to direct issue)
5. Beneficiary witnesses will- S15 Wills Act a gift by wills fails if the beneficiary, his spouse or civil partner witnesses the will
6. Gift to former spouse/ civil partner

Question 22

S33 Wills Act 1837

Answer 22

1. Applies to all gifts by will to the testator’s children or remoter issue
2. Where a will contains a gift to the testator’s child or remoter issue who has pre-deceased the testator, leaving issue of their own who survive the testator, the gift will not lapse but shall pass to the beneficiaries issue
3. The issue of a deceased beneficiary take the gift their parent would have taken in equal shares