Validity of Wills: and how Property Passes on Death (1)

Question 1

How does joint property pass under a will?

Answer 1

On the death of one joint tenant, their interest passes by SURVIVORSHIP to the other joint tenant(s)

Question 2

Can land held as TENANTS IN COMMON pass under survivorship?

Answer 2

No.
Only land held as beneficial joint tenants can pass under survivorship

Question 3

How do any benefits of insurance policies pass after the death of the policy holder?

Answer 3

On their death, the life assurance policy matures and the insurance company will pay the proceeds to the deceased’s PRs.
Life assurance policies can be written in trust for the benefit of specified individuals. Or, they can be transferred to or assigned to named beneficiaries.

Question 4

How do any pension benefits pass on the death of the deceased?

Answer 4

Such pension benefits do not belong to the employee during their lifetime and pass on death independently of the terms in any will/ intestacy rules

Question 5

What happens to a testator’s interest in trust property previously attained?

Answer 5

It does not become a part of the testator’s estate, it goes back to the trust that it came from.

Question 6

In what order does a solicitor deal with the estate of the deceased?

Answer 6

(a) property passing outside the will
(b) property passing under the will
(c) any property not disposed of in (a) and (b) passing on intestacy

Question 7

What is the person that makes a will called?

Answer 7

Testator if male
Testatrix if female

Question 8

What is a revocation clause?

Answer 8

A revocation clause cancels any prior wills.

Question 9

What is an executor?

Answer 9

An executor deals with the testator’s affairs after they die.
Their task is to collect in all of the testator’s assets, pay their debts and any inheritance tax, and then distribute the remaining assets to whoever is entitled under the will.
After the testator dies, the executor will make an application to His Majesty’s Courts and Tribunal Service Probate for a GRANT OF PROBATE which confirms that the will is valid and that the executor has the authority to act.

Question 10

What is a specific gift?

Answer 10

A gift of a specific item

Question 11

What is a general gift?

Answer 11

A gift or an item corresponding to a description. If the testator does not own the gift at death, the executors must obtain the gift using funds from the estate.

Question 12

What is a demonstrative gift?

Answer 12

This is a gift that is general in nature but is directed to be paid from a specific fund.

Question 13

What is a pecuniary gift?

Answer 13

A gift of money.

Question 14

What is a residuary gift?

Answer 14

A gift made from the residuary of the estate.

Question 15

What are the requirements for a valid will?

Answer 15

Capacity
Intention
Formalities

Question 16

What is the TEST for CAPACITY?

Answer 16

BANKS V GOODFELLOW
- must be aged 18 or over
- must have the requisite mental capacity
Testators must understand
the nature of their act
the extent of their property
the moral claims they ought to consider

Question 17

How does BANKS v GOODFELLOWS define testamentary capacity?

Answer 17

’ the soundness of mind, memory and understanding’

Question 18

What is the general rule regarding testators and capacity?

Answer 18

The general rule is that testators have capacity at the time they execute their wills.

Question 19

EXCEPTION to the general rule of testator’s capacity

Answer 19

PARKER v FELGATE
a will can be valid if the testator has capacity when they give instructions for the will even if their is no capacity when the will is executed.
The will must have been prepared by a solicitor who prepared the wills in accordance with the instructions given by the testator, and the testator must understand at the time of execution that they are signing a will prepared in accordance with their previous instructions.

Question 20

What happens if a testator is mentally incapable of making a valid will?

Answer 20

A statutory will will be made on their behalf under the Mental Capacity Act.

Question 21

What is the golden rule regarding testator capacity?

Answer 21

If the testator lacks capacity, the will is void.

Question 22

What is the general rule regarding the BURDEN OF PROOF and testator capacity?

Answer 22

The burden of proof is on the person who is asserting that a will is valid to prove it.

Question 23

What is the presumption of capacity?

Answer 23

Executors do not have to prove capacity because there is a presumption that the testator satisfied the mental capacity test.
The presumption applies if the will is rational on its face and the testator showed no evidence of mental confusion before making the will .
In the event that someone wants to challenge the validity of the will on the grounds that the testator lacked capacity, the burden shifts to the challenger to prove the lack of capacity.

Question 24

What two types of intention should a testator have when signing their will?

Answer 24

General and specific intention.
This means that they must intend to make a will and must also intend to make the particular will now being executed.

Question 25

The BURDEN of PROOF regarding INTENTION

Answer 25

The general rule is that it is for the person asserting that a will is valid to prove it. However, it is not usually necessary to prove intention because a presumption of knowledge and approval arises.

Question 26

Presumption of knowledge and approval EXCEPTIONS

Answer 26

• where the testator is blind/ illiterate/ not signing personally
• suspicious circumstances
  -force, fear, fraud, undue influence and mistake

Question 27

What is undue influence regarding wills

Answer 27

Where the testator’s freedom of choice was overcome by intolerable pressure, but their judgement remained unconvinced.
Undue influence regarding wills means coercion or duress.
Persuasion stopping short of coercion is not undue influence.

Question 28

What does S9 of the Wills Act 1837 depict?

Answer 28

The FORMALITIES of EXECUTION of a will.

Question 29

What are the requirements of S9 of the Wills Act?

Answer 29

• must be in writing
• must be signed
• testator must have intended to give effect to the will by his signature
• the signature must be witnessed

Question 30

What are some conditions regarding wills being in writing?

Answer 30

There are no restrictions on the type of wording.
It could be typed, handwritten, in braille or shorthand.
It does not have to be on paper.
Electronic will held only on a computer is unlikely to be valid as it is too easy to change or act fraudulently.

Question 31

What are some conditions regarding the signing of a will?

Answer 31

Any kind of signature is acceptable as long as the testator INTENDS for the signature to represent their name.
Crosses and thumbprints have been held acceptable.
Section 9 allows another person to sign the will on the testator’s behalf in the testators PRESENCE and at their direction.

Question 32

What are some conditions regarding the signatures of witnesses?

Answer 32

There are two stages…
Stage one- the testator’s signature must be made or acknowledged in the presence of two witnesses. The two witnesses must be present at the same time.
The second stage is for the witnesses to sign the will in the testator’s presence or to acknowledge their signature to the testator. The witnesses do not need to sign in each other’s presence.

Question 33

Define presence, (regarding witnessing and signings of wills)

Answer 33

Presence requires mental and physical presence .
To be mentally present, the witnesses must be aware that the testator is signing a document. They do not need to know that it is a will.
To be physically present they must or be able to see the testator signing. There must be an unobstructed line of sight between the witness and the testator.

Question 34

What happens when a witness is the beneficiary or the spouse of a beneficiary?

Answer 34

The will is valid but the gift to the witness beneficiary or their spouse will fail. (S15 WA)

Question 35

What is remote witnessing?

Answer 35

Due to Covid19 exceptions were made to abide by social distancing.
Electronic witnessing was allowed in 2020 up until 31 January 2024. Testator’s must sign their will themselves and it must be in real-time by video call or something similar. The testator must sign and date the will (physically) and the will is then given/ posted to the witnesses who sign and date it.

Question 36

What is the presumption of due execution?

Answer 36

The presumption arises where the will includes an attestation clause.
If there is no attestation clause, HMCTS will require an affidavit of due execution from any witnesses or other people present at the time the will was executed.

Question 37

How can a solicitor act to ensure there is not an issue with capacity?

Answer 37

They can ask a medical practitioner to write a report on the testator and their mental capacity and keep a copy on file. It is also a good idea for the medical practitioner to be present at the execution of the will.
The solicitor should also make a note of their thoughts of the testator’s capacity and keep this on file too.