Validity of wills

Question 1

Requirements for valid will

Answer 1

1. testator had capacity,
2. testator had intention,
3. WA formalities were met

Question 2

Presumption of capacity

Answer 2

Burden initially on person claiming will is valid
BUT: can rely on presumption of capacity if:
- will is rational on its face, and
- testator showed no sign of confusion when executing the will
Then, burden of proof shifts to the challenger

Question 3

To have mental capacity, testator must’ve understood:

Answer 3

• nature of the act and its broad effects,
• the extent of his property,
• the moral claims to consider

Question 4

When must’ve testator had capacity?

Answer 4

At time of execution
OR: at time when giving instructions on a will, as long as the instructions were given to a solicitor who drafted the will accordingly (and testator knew he was executing a will)

Question 5

Intention testator must’ve had

Answer 5

General (to make will) + specific (that specific will)

Question 6

Presumption of intention

Answer 6

Burden initially on person claiming will is valid
BUT: can rely on presumption of intention if testator had capacity, and read and executed the will
Presumption does NOT apply if:
- testator blind/illiterate/not signing personally, or
- there are suspicious circumstances of drafting/execution

Question 7

Formalities for validity of will

Answer 7

• must be in writing and signed by testator (or someone else in testator’s presence),
• it appears testator intended to give it effect,
• there were 2/more witnesses present, at the same time,
• each witness signed/acknowledged testator’s signature in testator’s presence

Question 8

Presumption of due execution

Answer 8

Burden initially on person claiming will is valid
BUT: can rely on presumption of due execution if there’s an attestation clause
If none, an affidavit of due execution is required from a witness/anyone present at execution