Validity of Wills Flashcards
what are the 3 requirements for a valid will?
1) testator has testamentary capacity
2) testator has knowledge and approval of contents in will
3) Will complies with formal requirements under s 9
also testator is 18+
what are the 3 requirements of testamentary capacity under Banks v Goodfellow?
T will have testamentary capacity if they can:
1) understand the nature of the act and its effects = understand they are signing a document that takes effect on death and disposes of assets but no need to understand every detail
2) appreciate the extent of their property = general understanding of what they own and approximate value (not every asset)
3) appreciate moral claims against their estate and have no disorder of the mind affecting their faculties or judgement
- no need to leave anything for those with moral claims
- T will have a disorder meaning they lack testamentary capacity if their judgement is affected when it comes to dispositions in the will
when is testamentary capacity presumed?
No statutory presumption of testamentary capacity
Common law presumption of testamentary capacity where:
(1) Will is duly executed
(2) Will appears rational on its face, and
(3) There is no reason to doubt the testator’s testamentary capacity
if testamentary capacity is presumed, how does the burden of proof / disproving it shift?
- burden of proof lies with the person seeking to admit the will into probate (executor)
- common law presumotion of capacity applies
- a person challenging its validity must provide evidence to raise doubt
- then the burden of proof reverts to the person seeking to admit the will to probate (executor) to prove they had testamentary capacity based on Banks v Goodfellow
When must a testator have testamentary capacity?
at execution of the will
unless parker v felgate applies
when can a testator still make a valid will if they did not have testamentary capacity at the time of execution? (parker v felgate)
a testator can still make a valid will if:
1) they had testamentary capacity at the time they gave instructions
2) the will was prepared in accordance with these instructions
3) at execution, testator understood they were signing a will for which they had previously given instructions
–> this applies where testator has fluctuating capacity
what should you do when taking instructions for a client who is elderly or seriously ill to ensure that the will will not be challenged for lack of testamentary capacity?
ask a medical practitioner to assess T’s capacity and provide a contemporaneous record of the assessment (BUT OBTAIN T’S CONSENT TO DO THIS FIRST)
what are the 2 requirements for T having knowledge and approval to execute a valid will?
requirements of knowledge and approval =
1) T has general intention to make a testamentary document +
2) T has specific intention to make THIS testamentary document = must know and approve of its contents
knowledge and approval must be at time of execution - unless Parker v Feldgate apply
when is knowledge and approval presumed (3 requirements)?
presumption of knowledge and approval =
(1) T has testamentary capacity
(2) will was validly executed, AND
(3) T signed their own will having had the opportunity to read it
when is knowledge and approval not presumed?
NO presumption of knowledge and approval =
- T is blind
- T is illiterate
- T does not understand English
- T is physically incapable of signing
- someone signs on T’s behalf
- Suspicious circumstances
–> burden of proof shifts to the person seeking to enforce the will to demonstrate knowledge and approval (via ATTESTATION CLAUSE in will and/or AFFIDAVIT after will)
what can be done to prove knowledge and approval if it is not presumed? (2 options)
- Attestation clauses = Attestation clause should be amended to reflect any steps taken to ensure the testator had knowledge and approval. In this way, the attestation clause acts as evidence of knowledge and approval.
- Affidavits of knowledge and approval = If the presumption does not apply and the attestation clause does not expressly confirm that appropriate steps were taken, an affidavit of knowledge and approval should be submitted to the probate registry as part of the application for probate.
affidavits of knowledge and approval -
what are they?
what is their benefit?
- Statement where the statement maker swears an oath of its veracity
- Provide proof of due execution where there is no presumption of knowledge and approval, and the attestation clause does not address this
- Affidavit is submitted when submitting the will to probate
- example = affidavit of witness swearing that certain steps took place to ensure T had K&A e.g., where T hurt their hand and arranged for someone else to sign on their behalf
attestation clause for blind testator
Signed by the above named [testator] who is blind in our joint presence, and then by us in his/her presence after this document has been read over by [name] to [testator] when [testator] seemed to thoroughly understand and approve the contents’
attestation clause for T who cannot sign themselves
Signed by A in T’s name and on behalf of T (who is physically incapable of signing), in the presence of both of us and at T’s direction, and then by us in their presence, when T seemed to thoroughly understand and approve of the contents
Undue influence affecting knowledge and approval
what is it?
who has the burden of proof?
what is the result of a finding of UI?
- A will executed under the duress or undue influence does not reflect the true intention of the testator and therefore knowledge and approval will not be present, and the will is invalid.
- what is it = T did not intend to make the will, was coerced against their judgement and contrary to their true intention, does not genuinely exercise choice, and was not a free agent. It is not mere persuasion or encouragement - eg, appealing to ties of love and affection or pity
- consider the physical and mental strength of the testator = vulnerable testator may be more susceptible to UI
- The burden of proof is with the person alleging duress or undue influence occurred
- effect of UI = any gift or entire will made as a result of undue influence is INVALID
