Validity of a will Flashcards
What is the main purpose of a will?
To establish how a person’s assets will be distributed after their death.
What happens if a deceased did not make a valid will?
The intestacy rules will determine who inherits.
What is testamentary freedom?
A testator can leave their property to whomever they choose.
What is the minimum age requirement to make a valid will according to s7 Wills Acts 1837?
18 years old.
What are the exceptions to the age requirement for making a will?
- Married minors
- Those in military service
What are the three legal requirements to make a valid will?
- Testamentary capacity
- Knowledge & approval
- Formal requirements (s.9 Wills Act 1837)
What does testamentary capacity refer to?
A testator must be mentally capable of making a will.
What case established the common law test for testamentary capacity?
Banks v Goodfellow.
What are the 4 requirements for testamentary capacity?
- Nature of the Act
- Extent of the property
- Moral claims
- Disorder of the mind
What must a testator understand according to the Nature of the act?
- They must understand they are signing a document that takes effect on death and disposes of their property.
- The testator should be able to understand the broad effects of the will, not every little detail
What does a testator need to appreciate regarding the extent of their property?
- They should have a general recollection of what they own and the approximate value of their estate/ value of assets.
- Testor not required to recall every item and the exact value of each
- Test is for understanding rather than perfect memory
What are moral claims in the context of testamentary capacity?
A testator should appreciate those to whom they owe a moral responsibility.
What is required for a testator’s mental state regarding disorder?
They must have no disorder of the mind that affects their judgment.
If suffering from insane delusions affecting their judgement, they lack testamentary capacity
When must a testator have testamentary capacity?
At the time the will is executed.
What is the exception to the timing requirement established by Parker v Felgate?
A testator can still make a valid will if they:
* Had testamentary capacity when they gave instructions for the will
* The will was prepared in accordance with those instructions
* At the time of execution, the testator understood they were signing a will for which they had previously given instructions
When does the exception in Parker v Felgate apply
When the testator’s testamentary capacity fluctuates over time (as a result of illness) or due to an unexpected event
What is fluctuating capacity?
A testator’s capacity can change over time due to illness or circumstances.
What is the ‘golden rule’ established in Kenward v Adams?
A medical practitioner should assess the testator’s capacity and record the assessment.
Who bears the burden of proof regarding testamentary capacity?
The propounder of the will (usually the executor).
What does the Mental Capacity Act 2005 introduce?
A general statutory test of a person’s capacity to make decisions.
What can the court authorize if a client lacks testamentary capacity?
The execution of a will on behalf of an adult who cannot make one for themselves.
What must a testator have regarding their testamentary document?
A general intention to make a testamentary document that disposes of their property.
What is required for a testator’s knowledge and approval?
They must know and approve of the contents of the will.
When is knowledge and approval presumed?
If the testator had testamentary capacity and the will was executed in accordance with s 9 Wills Act 1837.
In which circumstances is there no presumption of knowledge and approval?
- The testator is blind or illiterate
- The will was signed by someone on behalf of the testator
- There are suspicious circumstances
What is required if there is no presumption of knowledge and approval?
An affidavit of knowledge and approval is usually needed.
What invalidates a will even if the testator has knowledge and approval?
If the will was made as a result of undue influence or duress.
What is undue influence in relation to wills?
Coercion into making a will or including particular terms against the testator’s true intention.
What does the burden of proof for undue influence require?
Evidence that is inconsistent with any other hypothesis.
What is the minimum requirement for a will to be valid according to s.9 Wills Act 1837?
It must be in writing and signed by the testator.
What must the signature indicate according to s.9 (b)?
It must appear that the testator intended to give effect to the will.
What does s.9 (c) require regarding witnesses?
The signature must be made or acknowledged in the presence of two or more witnesses present at the same time.
What is the requirement for witnessing the will as per s.9 (d)?
Each witness must either attest and sign the will or acknowledge their signature in the presence of the testator.
What information should be noted about each witness in case the will is challenged?
The full name, addresses, and occupation of each witness
This information is necessary for potential affidavits regarding the execution or the testator’s mental state.
What are the two ways a witness can attest to a will according to Section 9 (d)?
- Attests and signs the will
- Acknowledges his signature in the presence of the testator
No form of attestation is necessary.
Must both witnesses sign the will in front of each other?
No, it is not necessary for each witness to also sign in front of each other
Both must sign in front of the testator.
What is an attestation clause?
It describes the circumstances under which the will was executed
Example: ‘Signed by the above named [testator] in our joint presence and then by us in his/hers.’
Is there a legal obligation to include an attestation clause in a will?
No, there is no legal obligation to include an attestation clause
However, a properly drafted clause raises a presumption of due execution.
What happens in the absence of a proper attestation clause?
Proof of proper execution is required, usually through an affidavit of due execution sworn by the witnesses
A poorly worded clause may lead to complications.
What should be done if the will is executed under special circumstances?
The attestation clause should be amended to reflect these special circumstances
For example, if the testator cannot read, the clause should indicate that the will was read to them.
What is the consequence of failing to follow the correct execution process for a will?
It may constitute negligence
Solicitors should oversee the execution process to avoid this.
What does Section 15 of the Wills Act state regarding gifts to attesting witnesses?
Gifts to an attesting witness (or their spouse) are void
This means a beneficiary cannot inherit if they acted as a witness.
Does the will remain valid if a beneficiary acts as a witness?
Yes, the will remains valid
However, the solicitor may be negligent if they do not advise on the effect of Section 15.
What does Section 28(4)(a) of the Trustee Act 2000 confirm regarding professional executors?
Section 15 will not apply to the remuneration received by the professional executor for witnessing the will
This allows them to be compensated regardless of their witness status.
What happens if a beneficiary is appointed as an executor and Section 15 applies?
The appointment remains effective even if they are denied inheritance
If there are at least two other witnesses not affected by Section 15, the will is properly executed.
