Validity of Wills Flashcards
How does joint property pass on death?
If it is held by more than one person as beneficial joint tenants, upon the death of one their interest passes by survivorship to the surviving joint tenant
How does property pass for tenants in common?
Under their will/intestacy rules
How do insurance police pass on death?
The deceased’s PR will distribute it according to the will or intestacy rules
How do pension benefits pass after death?
Family or dependants chosen at the trustee’s disscretion
How does trust property pass on death?
The trust property will devolve according to the terms of the trust and not the deceased life tenant’s will
What is a specific gift?
Specific items which the testator owns
What are general gifts?
Items corresponding to a description
If T does not own the item at death, the executor must obtain the item using funds from the estate e.g shares
What is a demonstrative gift?
General in nature but is directed to. be paid from a specific fund e.g, paid from a bank account
What is pecuniary gift?
Gift money
What is a residuary gift?
All the money and property left after the testator’s debts. the expenses of dealing with the estate and the other gifts made under the will have all been paid
What are the 3 requirements of a will?
Capacity, intention and formalities
What is the definition of testamentary capacity?
‘Soundness of mind, memory and understanding’
What must testators understand when they create a will?
- The fact that they are making a will which will have effect on their death
- The extent of their proeprty
- Moral claims to be considered
When must testator’s have capacity?
At the time they execute their wills
What is the effect is the testator lacks capacity?
The will is void
What should a solicitor do if they are preparing a will for a testator whose mental state is in doubt?
Follow the golden rule - Solcitor should ask a medical practitioner to provide a written report confirming that the testator has testamentary capacity and ask the dr to witness the will
The solicitor should record their own view of the testator’s capacity in a file notice and keep it on file should someone challenge the will
Who has the burden of proof when a will is challenged?
The person asserting that the will is valid
What is the presumption of capacity?
The testator satisfied the mental capacity when making the will
When are the courts less likely to find that the testator lacked capacity?
When it was prepared by an experienced, independent solicitor who met with the testator and explained the will to them or when a dr witnessed the will per the golden rule
What is the meaning of intention?
When the will is signed, the testator must have general and specific intention - They must intend to make a will and intend to the particular will that is now being executed
What is the presumption of knowledge and approval?
A testator who has the capacity and has read and executed the will is presumed to have the requisite knowledge and approval - this presumption does not apply:
- When T is blind/illiterate/ not personally signing
- Suspicious circumstances
Can a solicitor accept instructions from a third party to draw up a will for T?
No, they should interview the T in the absence of a third party to ensure that any will drafted reflects the testator’s wishes
How a will be challenged when the T had capacity and approved the contents of the will?
- Force or fear
- Fraud
- Undue influence
What are the formalities of execution?
A will must be
- In writing, signed by T (or another)
- T must have intended his signature to give effect to the will
- Signatures is acknowledge by T in the presence of 2 or more witnesses present at the same time
- Each witness either attests and signs the will/ acknowledges his signature in the presence of the testator
What is the presumption of due execution?
Arises if the will includes a clause which recites that the s.9 formalities were observed
i.e, when the will includes a clause like ‘ signed by the T in our joint presence and then by us in hers’ - this is an attestation clause which means anyone challenging the validity of the will on the ground that it was not validly executed has the burden of proving this
Who cannot be a witness?
- Beneficaries
- The people married to beneficaries
