Validity Of Will Flashcards
What are the main legal issues in Josephine’s case?
(1) Whether the original will is valid considering dementia and execution, and (2) Whether the sticky-note amendments are valid alterations under succession law.
What are the capacity requirements (Test) for making a valid will?
Per Banks v Goodfellow [1870] (adopted in Ireland in O’Donnell v O’Donnell), the testator must understand:
- The act of making a will.
- The extent of the property.
- The claims of potential beneficiaries.
How does dementia affect testamentary capacity?
A person with dementia may still make a valid will during a lucid interval (Parker v Felgate [1883]; Glynn v Glynn [1990]).
What is the statutory requirement for testamentary capacity in Ireland?
Section 77 of the Succession Act 1965 requires a ‘sound disposing mind.’
What are the formal requirements for a valid will under Section 78 of the Succession Act 1965?
Must be in writing.
Must be signed at the foot or end by the testator or someone directed by them.
Must be attested by two witnesses present at the same time.
What counts as a valid signature under Irish succession law?
An ‘X’ or mark is valid if intended to execute the will (In bonis Emerson; Glynn v Glynn).
Must witnesses see the actual signature to attest it?
No, they must see the act of signing or hear acknowledgment of the signature (Kavanagh v Fegan [1932]).
What happens if witnessing requirements are imperfect?
Courts may apply the presumption of due execution if formalities appear to have been followed unless rebutted (Clery v Barry [1889]).
Does Josephine’s will meet the formal validity requirements?
Likely yes:
- Written will.
- X mark valid signature.
- Two witnesses present during the act (even without seeing direct signature).
- Presumption of due execution likely applies.
What are the rules for altering a will under Irish law?
Section 86 of the Succession Act 1965:
- Alterations must be signed by the testator.
- Alterations must be witnessed by two witnesses in the same manner as the original will.
Are Josephine’s sticky-note amendments legally valid?
No:
- Sticky notes not signed properly at foot or end.
- Insufficient number of witnesses.
- Formality requirements under Section 86 not met.
What happens to informal changes (e.g., sticky notes) that fail to meet formal requirements?
They are invalid and ineffective; the original will stands unaffected.
What is the final legal conclusion about Josephine’s estate?
Original will is valid.
Sticky-note amendments are invalid.
Josephine’s estate should be distributed according to the original will.
What academic commentary supports the findings about Josephine’s will?
Wylie: Courts should adopt practical approaches for wills made under difficulty but must enforce formalities strictly to protect certainty.
Keating: Alterations must strictly comply with formal requirements to avoid fraud and preserve testamentary intention.
What is the key case authority for witnessing rules when signature is not directly observed?
Kavanagh v Fegan (1932): Witnesses must be present during the signing act but need not see the signature itself.
What is the key case authority for capacity with periods of lucidity?
Parker v Felgate (1883) (and Glynn v Glynn in Ireland):
Instructions during lucidity + execution later are sufficient if intentions are confirmed.
CALM?
C – Capacity → Banks v Goodfellow test for sound disposing mind.
A – Act of Will → Must understand making a will, nature of property, natural beneficiaries.
L – Lucid Interval → Dementia doesn’t block will-making if lucid (Parker v Felgate; Glynn v Glynn).
M – Mental State at Signing → Signature at time of understanding needed.
SIGN?
S – Signature Requirements → “X” or mark acceptable if intended to execute (Glynn v Glynn).
I – In Presence of Witnesses → Two witnesses must be present at signing or acknowledgment (Kavanagh v Fegan).
G – Good Presumption → Courts presume proper execution unless strong evidence (Clery v Barry).
N – No Need for Perfect View → Witnesses don’t need to see signature itself, just act.
RULES?
R – Rules for Amendments → Alterations need full formalities (s.86 Succession Act 1965).
U – Unacceptable Sticky Notes → Informal notes not valid amendments.
L – Legal Formalities Strict → Without signing and witnessing, changes fail.
E – Evidence Matters → Lack of formal witnessing invalidates changes.
S – Sticky Amendments Fail → Sticky notes cannot change will.
FINAL
F – Final Outcome → Original will stands; amendments invalid.
I – Independent Case Law → Banks v Goodfellow, Glynn v Glynn, Kavanagh v Fegan.
N – No New Will by Notes → Only valid documents change a will.
A – Academic Support → Wylie and Keating agree on strict formal requirements.
L – Legal Conclusion → Estate distributed according to original will.
