Validity of a will Flashcards
What is the minimum age requirement for a testator to have capacity?
18 years old
What is the legal presumption regarding the capacity of a testator?
The testator is presumed to have capacity unless evidence suggests otherwise
What is the test for capacity?
Banks v Goodfellow:
1. Must understand the nature of the act and its effects
2. Appreciate the extent of the property of which they are disposing
3. Understand and appreciate the moral claims to which they ought to give effect
4. No perversion of the mind
Is a testator obligated to leave anything to individuals they have moral responsibilities to?
No obligation to leave those people anything
What is the significance of insane delusions in relation to testamentary capacity?
A testator suffering from general or will specific insane delusions affecting judgment lacks capacity. If the delusions have no effect on their will, they will still have capacity.
When must capacity be held for a will to be valid?
At the time the will is executed
What is the exception outlined in Parker v Felgate regarding testamentary capacity?
A testator can make a valid will despite lacking capacity at execution if they:
- had capacity when giving instructions
- and the will was prepared in accordance with those instructions
- and the testator understood they were signing a will for which they had previously given instructions
What is meant by fluctuating capacity?
Capacity that changes due to conditions like dementia or specific life events
What is the Golden Rule concerning assessment of a testator’s capacity?
A medical practitioner should assess the testator’s capacity if they are old or ill.
What is the presumption of capacity in relation to wills?
The burden of proof lies with the propounder, but capacity is presumed if the will appears rational and duly executed.
What must someone provide to challenge the validity of a will on capacity grounds?
They must provide evidence sufficient to raise doubt.
What happens if evidence is provided to challenge capacity?
The presumption is rebutted, and the burden of proof reverts to the propounder to demonstrate the testator satisfied the Banks v Goodfellow test.
What is the purpose of the Mental Capacity Act 2005?
It is intended to tie in with the common law test rather than replace it - therefore common law test prevails if there is conflict.
What are statutory wills?
It is possible for the court to authorize the execution of a will on behalf of an adult who lacks capacity to make one for themselves.
The court must be perusaded that:
- there are grounds to diverge from existing testamentary position
- and it is in the person’s best interests
What must a testator do regarding their will to show knowledge and approval?
The testator must read their will, understand it, and by their signature intend to give effect to its terms.
When is K+A required?
At the time of execution unless the exception in Parker v Felgate applies.
Can knowledge and approval (K&A) be present for parts of the will?
Yes, K&A can be present for parts of the will, and those parts will be admitted to probate.
When is there a presumption of K+A?
There is a presumption of K&A if the testator has testamentary capacity.
What happens if there is evidence raising doubt about K&A?
The presumption of K&A is rebutted, and the burden of proof shifts to those seeking to enforce the will.
When is there no presumption of K&A?
- Testator was blind or illiterate
- Will was signed by someone on behalf of the testator
- There are suspicious circumstances (will was prepared by a key beneficiary
What is needed if there is no presumption of K&A and the attestation clause does not address it?
An affidavit of K&A would be needed when submitting the will to probate.
What is preferable to an affidavit if there is no presumption of K+A?
Drafting the attestation clause to reflect the steps taken to ensure the T has full K+A
What happens if a will is made under undue influence (UI)?
If a will was made under UI, the will is invalid.
What if only part of a will was made under UI?
If part of a will was made under UI, the remainder may be valid provided the omissions do not upset the tenor of what remains.
How is UI summarized?
UI goes beyond persuasion. It is where a testator is coerced into making a will or has to surrender to pressures.
Re Edwards
Who has the burden of proving UI?
The burden of proving UI lies with the person making the allegation.
What must be proven to establish UI?
It must be proven that the facts are inconsistent with any other hypothesis other than UI.
very high bar
What is the significance of the testator’s physical and mental strength in UI cases?
The physical and mental strength of the testator are relevant when determining how much pressure would be necessary to overbear the will.
What are the formal requirements for a will?
- in writing
- signed by the testator
- or by some other person in their presence and at their direction
- the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time
- each witness should attest and sign the will or acknowledge his signature in the presence of the testator
What forms of writing are acceptable for a will?
Includes handwriting or typed documents. Pencil requires further evidence to confirm finality.
What constitutes a signature for a will?
Any mark can constitute a signature if the testator intends it to be.
What is required for a signature made by another person?
There must be a direction to sign the will on behalf of the testator, and the testator must be present when signing.
What are the requirements for witnesses?
Witnesses must be physically and mentally present, but they do not need to know the will’s terms. No minors, blind, drunk, or unsound mind individuals can witness.
What information should be noted about each witness?
Full names, addresses, and occupations of each witness should be noted.
Is there a legal obligation to hvae an attestation clause?
No legal obligation exists for an attestation clause, but proof of proper execution is required in its absence.
What is the purpose of an attestation clause?
It usually notes any special circumstances under which the will was signed.
What should be included for blind or illiterate testators?
A special attestation clause should be included stating that the will was read aloud for the testator and they confirmed understanding its contents.
What does S15 Wills Act 1837 state about gifts to attesting witnesses?
Any gifts to an attesting witness or their spouse are void, but this does not make the will void.
Can a beneficiary witness a will?
Yes, but any gifts to them would be void.
Does S15 Wills Act 1837 apply to professional executors?
No, it does not apply to the remuneration of professional executors.
Can attesting witnesses be appointed as executors?
Yes, attesting witnesses can still be appointed as executors.
How can the effect of S15 be disregarded?
If there are two other witnesses not caught by S15 or the will is confirmed by a properly executed codicil.
What are the overall requirements for a valid will?
- Formalities
- Capacity
- Knowledge and approval
