Validity of Wills and How Property Passes on Death Flashcards
Explain the Banks v Goodfellow test for testamentary capacity.
The testator must understand:
1) The nature of their act and its broad effects (ie that they are making a will which will have effect on their death);
2) The extent of their property (although not necessarily knowledge of every single item); and
3) The moral claims they ought to consider (even if they decide to reject such claims and leave stuff to other beneficiaries); and
4) Testator must not be suffering from any insane delusion.
Explain the Parker exception to testamentary capacity.
Will is valid when they give instructions to draft the will. provided:
1) these instructions were given to a solicitor; and
2) they had capacity when instructions were given; and
3) the will was drawn up in accordance with their instructions (knowing they are signing their will they previously had drafted will be sufficient).
Name the two instances (aside from clear mental confusion) where it is not presumed the testator had mental capacity when the will was made.
1) They are blind or illiterate;
2) The will is not rational on its face.
If above, then it must be proven testator had capacity (ie they may need advice from a medical practitioner, or input from the witnesses before probate can be granted).
What is the order in which assets will be disposed of on the death of a testator?
1) Assets passing outside the will;
2) Assets passing in the will;
3) Assets not covered in the will (which will then pass under intestacy rules).
What is the rule with trust property held for the interest of the testator?
The property will pass in accordance with the terms of the trust, not under (or be included in) the terms of the will.
Name the four requirements for making a valid will.
1) Formalities under s9 Wills Act 1837 must be complied with;
2) Testator must have had capacity;
3) Testator must have had intention (ie knowledge and approval);
4) There must have been no fear, fraud, mistake or undue influence.
Name the formalities needed for a valid will (under s9 Will Act 1837)
1) The will must be in writing (ie an electronic copy only will not suffice);
2) Must be signed by the testator (or signed by someone else on their direction in their presence);
3) Must be witnessed by 2 witnesses. The witnesses must see the testator sign the will and must sign in the presence of the testato. Each witness must attest the signature or acknowledge it (no attestation clause may lead to probate office asking for sworn declarations from the witnesses); and
4) It must appear the testator intended his signature to give effect to the will.
Do the witnesses need to witness a will in the presence of each other?
No but they both must witness in presence of testator.
What is an attestation clause?
An attestation clause is a clause explaining the witnesses have seen the testator sign the will, were present when they did so, and witnessed the will in front of the testator.
What is required in the absence of an attestation clause?
The probate office will ask for sworn affidavits from the witnesses to confirm they correctly witnessed the will, and to identify the testator’s signature.
Describe the solicitors duties where drafting a will for a client.
They must:
1) give clear instructions to client, explaining how to sign and properly witness it;
2) Must warn beneficiaries and those married to them witnessing the will would invalidate any gifts they are due to receive;
3) Ideally must do everything at the solicitors office to avoid mistake;
4) If executed at home, solicitor should review the executed will to ensure formalities are complied with.
Failure to do any of the above may lead to liability in negligence.
What does the term statutory trust refer to?
Refers to items/parts of the deceased’s estate passing under intestacy rules.
In the absence of an attestation clause, the probate office will require a sworn affidavit. Who can provide this?
This will likely be one of the witnesses / someone who was present at the point the will was signed.
Under intestacy rules, if there is a surviving spouse and two surviving children, what are each entitled to?
Spouse - personal chattels, the allowance of 322,000 and half of the remaining balance.
Children - the other half of the remaining balance will be split between the two surviving issue according to how many there are.
If one of the issues dies and has surviving interest, that grandchild of the testator will have a contingent interest in their parents share (contingent on reaching the age of 18).
Explain whether children born after a will is made will benefit in a class gift (eg jewellery to my daughters).
Children alive at the time of execution of the will are to benefit.
Those born afterwards will not.
This is because the general rule is that the will speaks from the date of execution when it comes to identifying beneficiaries.
