Validity of will

Question 1

What are the two main requirements for making a valid will?

Answer 1

The testator must have mental capacity and the intention to make a will.

Question 2

What must a will comply with to be duly executed according to the Wills Act 1837?

Answer 2

The will must be executed in accordance with s9 Wills Act 1837.

Question 3

What is the presumption regarding a testator’s mental capacity when challenging the validity of a will?

Answer 3

A testator is presumed to have mental capacity unless evidence points to a lack of capacity.

Question 4

What are the three components of mental capacity required for making a will?

Answer 4

1. The nature of their act (making a will).

Question 5

What are the three components of mental capacity required for making a will?

Answer 5

2. The extent of their property.

Question 6

What are the three components of mental capacity required for making a will?

Answer 6

3. Who they would normally give gifts to.

Question 7

What can a court decide if a testator did not have full mental capacity at the will’s execution but could instruct the will drafter?

Answer 7

The court may deem the testator to have acted with capacity if they had sufficient mental capacity to instruct the will drafter.

Question 8

What happens to a gift in a will if the will drafter benefits from it and there are suspicious circumstances?

Answer 8

The gift will fail unless evidence is provided that shows the testator’s knowledge and approval of the gift.

Question 9

What should a solicitor do if a testator wants to give them a substantial gift in their will?

Answer 9

The solicitor should refuse to draft the will including the gift unless the testator has taken independent legal advice.