Validity of a Will Flashcards
What are the key requirements for a valid will?
A valid will requires testamentary capacity, intention, and compliance with the formalities of execution. All three requirements must be met, and failure to meet any one requirement invalidates the will
What is testamentary capacity?
Testamentary capacity, as defined in Banks v Goodfellow, requires the testator to have “soundness of mind, memory and understanding”. The testator must understand:
○The nature of their act and its broad effects.
○The extent of their property.
○The moral claims they ought to consider.
○They must not be suffering from any insane delusion which affects the disposition of their property. The testator must have capacity at the time of execution unless the Parker v Felgate exception applies
What is the ‘golden rule’ for solicitors regarding wills?
When a solicitor prepares a will for a testator whose mental state is in doubt, they should ask a medical practitioner to provide a written report confirming testamentary capacity and to witness the will. The solicitor should also record their own view of the testator’s capacity
What is the general rule regarding the burden of proof for a will’s validity?
The general rule is that the person asserting that a will is valid must prove it. However, there is a presumption of capacity if the will is rational and the testator showed no signs of mental confusion. This shifts the burden of proof to anyone challenging the will
What does ‘intention’ mean in the context of making a will?
A testator must have both general and specific intention. The testator must intend to make a will and must intend to make the particular will being executed. They must know and approve its contents
When does the presumption of knowledge and approval not apply?
The presumption does not apply if the testator was blind or illiterate, if someone else signed on the testator’s behalf, or if there are suspicious circumstances surrounding the will. Suspicious circumstances include if a major beneficiary prepared the will
What are the grounds for challenging a will besides capacity and intention?
A will can be challenged on grounds of force or fear, fraud, undue influence, or mistake. Undue influence requires proof of coercion or duress, not just persuasion
What are the formal requirements for executing a will according to Section 9 of the Wills Act 1837?
○The will must be in writing.
○The will must be signed by the testator or someone directed by them in their presence.
○The testator must intend their signature to give effect to the will.
○The signature must be made or acknowledged in the presence of two or more witnesses present at the same time.
○Each witness must attest and sign the will or acknowledge their signature in the presence of the testator
What is an attestation clause?
An attestation clause is a statement in the will confirming that the will was signed and witnessed in accordance with the requirements of Section 9. This clause raises a presumption that the will was validly executed
What is a ‘privileged will’?
A privileged will is an exception to the normal rules. It is a will made by a person on actual military service or a mariner at sea. It can be in any form and needs only to express the intention of disposing of property after death
What types of property pass outside of a will?
○Joint property: Property held as beneficial joint tenants passes by survivorship.
○Insurance policies: Policies written in trust for named individuals or assigned to named beneficiaries.
○Pension benefits: Benefits paid by trustees to family members or dependents, usually according to a letter of wishes.
●Trust Property: Equitable interests that come to an end on the beneficiary’s death
What is a ‘legacy’ and what types are there?
A legacy is a gift of personalty in a will. Types include:
○Specific gift: a gift of a particular item.
○General gift: a gift of a described item, which must be purchased if not owned by the testator.
○Demonstrative gift: a gift from a specific fund.
○Pecuniary gift: a gift of money.
○Residuary gift: the remainder of the estate after all other gifts and debts are paid
What are the solicitor’s duties when preparing a will?
○To ensure the will is valid.
○To explain how to sign and witness a will.
○To avoid beneficiaries witnessing the will.
○To follow the golden rule when the testator’s capacity is in doubt.
○To check the will to ensure s9 has been complied with.
○To take instructions from the testator, not third parties
○To interview the testator in the absence of third parties
In what order should assets be considered when determining how they will pass on death?
○Property passing outside the will.
○Property passing under the will.
○Any remaining property passing on intestacy
