Validity of Wills and Codicils Flashcards
What are the legal requirements for a valid will?
- Testamentary capacity
- Knowledge & approval
- Formal requirements (s9 WA 1837)
Testamentary capacity
The testator must be mentally capable of making a will
Test (Banks v Goodfellow)
- understand the nature of the act and its effects
- appreciate the extent of the property which they are disposing of
- understand and appreciate moral claims
- have no disorder of the mind
Timing requirements for testamentary capacity
A testator must have testamentary capacity at the time the will is executed
Exception to the timing requirement
Parker v Felgate (fluctuating capacity)
A testator who lacks testamentary capacity at the time of execution can make a valid will provided:
- they had testamentary capacity at the time they gave instructions
- the will was prepared in accordance with those instructions
- at the time of execution, the testator understood that they were signing a will for which they previously gave instructions
What should a solicitor do if the client is elderly or seriously ill?
It is best practice to instruct a medical practitioner to make an assessment of the testator’s capacity
- This is not a legal requirement, but is best practice to minimise future disputes
- Failure to follow this rule increases the likelihood of the will being contested
When is there a presumption of capacity?
If the will appears to be rational and it is properly executed
How can someone challenge the validity of the will on the grounds of a lack of capacity?
Anyone who wishes to challenge must provide evidence sufficient to raise doubt
- If such evidence is provided, the presumption is rebutted and the burden of proof is on the person seeking to admit the will to probate to demonstrate the testator had testamentary capacity
What should a solicitor do if the client lacks testamentary capacity?
If a client lacks testamentary capacity, they cannot make a valid will and a solicitor should not accept their instructions
- it is possible for the court to authorise the execution of a will on behalf of an adult who lacks capacity
Knowledge and approval
A testator must read their will and understand it, and by their signature intend to give effect to its terms
Knowledge and approval must be present at the time of execution
When is knowledge & approval presumed?
- The testator had testamentary capacity; and
- The will was executed in accordance with the requirements of s9 WA 1837
When is there no presumption of knowledge & approval?
- If the testator is blind or illiterate: need to submit affidavit of due execution
- The will was signed by someone on behalf of the testator: amend the attestation clause to reflect this
- There are suspicious circumstances
If the attestation clause does not address why there is not a presumption of knowledge & approval, then an affidavit of knowledge and approval must be submitted
Undue influence and duress
If the will is made as a result of undue influence or duress, it will not be valid, as it will not reflect the testator’s true intention
What is undue influence and what is the burden of proof?
- Undue influence occurs where a testator is coerced into making a will which are contrary to their true intention
- It goes beyond persuasion
- The burden of proving undue influence lies with the person making the allegation
Formal requirements (s9 WA 1837)
For a will to be valid:
- it must be in writing and signed by the testator
- the testator intended to give effect to it by their signature
- witnesses by two people who sign in the testator’s presence
What is the best advice to give a client in regard to signing the will?
Whilst any mark may constitute a signature, it is preferable for the testator to use a normal signature for the avoidance of doubt
- If the client cannot hold a pen, it would be better to advise them to instruct someone to sign on their behalf (and reflect in attestation clause)
What should you advise a client if they cannot physically execute the will?
The client can direct someone to sign their will on their behalf
- The attestation clause must be amended to demonstrate correct procedure was followed and then the client’s knowledge and approval can be presumed
Attestation clause
Describes the circumstances under which the will was executed
- no legal obligation to include one
- properly drafted attestation clause raises a presumption that the will was properly executed
Attestation clauses and special circumstances
If the will is executed in special circumstances (signed by someone else or the testator is blind/illiterate), the attestation clause should be amended to reflect these and provide evidence of knowledge & approval
- If a solicitor does not ensure that the correct execution process is followed - failure may constitute professional negligence
What does a solicitor need to advise in relation to attestation under s15 WA 1837
Under this section any gifts to an attesting witness (or their spouse) are void
- The will as a document remains valid, but the the gift to the beneficiary is void
- Solicitor must advise on this, otherwise they may be negligent
Advice to a client: they must appoint witnesses who are not beneficiaries of the will
If there are at least two other witnesses not caught by s15 or if the will is subsequently confirmed by a properly executed codicil, the effect of s15 is disregarded
Advising a client on the practical steps for executing their will (to comply with legal requirements)
- Clients must read the will and be satisfied with the contents: this satisfies knowledge & approval
- Must appoint witnesses who are not beneficiaries
- The testator must be in the room when their witnesses signed (attest/acknowledge their signature)
- Need at least two witnesses (who are not beneficiaries)
- It is best to get everyone in the room, the two witnesses together with the client. The client signs in front of them and they sign in front of you together
- Dating the will - they do not have to date the will but it is best practice to
- One the will is signed, the client needs to sent it back to the solicitor
- Keep the original will safe
- Do not staple the will or take it apart: must keep it as it is, so it does not look like it has been tampered with
Examples of attestation clauses of special circumstances (consider for drafting purposes)
Examples:
o Unable to read English: Signed by A (who understands French but cannot read English) in the presence of both of us and then by us in A’s presence after the will had been read aloud to A in English and accurately translated by B who understands English and French in our presence when A seemed thoroughly to understand and approve the contents.
o Physically unable to sign: Signed by A in B’s name and on behalf of B (who is physically incapable of signing), in the presence of both of us and at B’s direction, and then by us in their presence, when the testator seemed thoroughly to understand and approve the contents.
o Blind/Illiterate: Signed by A in the presence of both of us, then by us in the testator’s presence after this document had been read over by B to the testator when the testator seemed thoroughly to understand and approve the contents.
