Validity of Wills and How Property Passes on Death

Question 1

Which property passes outside the will and intestacy rules?

Answer 1

Where property is held by more than one person as beneficial joint tenants.

Life assurance policy written in trust for the benefit of specified individuals.

Pension benefits that have been left to specified individuals under a letter of wishes.

Life interest in trust property.

Question 2

What are the requirements of a valid will?

Answer 2

A testator must have the necessary capacity and intention, and must observe the formalities for execution of wills laid down in the Wills Act 1837.

Question 3

What are the requirements for testamentary capacity?

Answer 3

The testator must be aged 18 or over, have the requisite mental capacity and must not be suffering from any insane delusion.

Question 4

What is the definition of testamentary capacity in Banks v Goodfellow [1870]?

Answer 4

‘soundness of mind, memory and understanding’

Question 5

What must testators understand in order to have testamentary capacity?

Answer 5

The nature of their act and its broad effects (the fact that they are making a will which will have effect on their death)

The extent of their property (although not necessarily recollecting every individual item)

The moral claims they ought to consider (even if they decide to reject such claims and dispose of their property to other beneficiaries).

Question 6

What is the general rule as to when a testator must have testamentary capacity?

Answer 6

Testators must have capacity at the time they execute their wills.

Question 7

What is the exception to the general rule of testamentary capacity under Parker v Felgate [1883]?

Answer 7

A will can be valid if the testator has capacity when they give instructions for the will even if they lose capacity by the
time the will is executed. The will is valid if the instructions were given to a solicitor, who prepared the will in accordance with the instructions, and at the time the testator executes the will, they appreciate that they are signing a will prepared in accordance with their previous instructions.

Question 8

What is the ‘golden rule’ for a solicitor preparing a will for a testator whose mental state is in doubt?

Answer 8

The solicitor should ask a medical practitioner to provide a written report confirming that the testator has testamentary capacity and also ask the doctor to witness the will.

The solicitor should record their own view of the testator’s capacity in a file note.

The written evidence should be kept on the file in case someone challenges the validity of the will after the testator’s death.

Question 9

When does the presumption of capacity apply?

Answer 9

if the will is rational on its face and the testator showed no evidence of mental confusion before making the will.

Question 10

When are the courts less likely to find that the testator lacked capacity?

Answer 10

If a rational will was prepared by an experienced, independent solicitor who met the testator and explained the
will to them.

A report or witnessing by a medical practitioner in accordance with the
‘golden rule’

Question 11

What is the meaning of intention?

Answer 11

When the will is signed, the testator must intend to make a will (as opposed to any other sort of document), and must also intend to make the particular will now being executed.

Question 12

When does the presumption of knowledge and approval arise?

Answer 12

A testator who has capacity and has read and executed the will is presumed to have the requisite knowledge and approval.

Question 13

In which situations does the presumption of knowledge and approval not apply?

Answer 13

If the testator was blind or illiterate, or another person signed the will on the testator’s behalf.

If there are suspicious circumstances surrounding the drafting and/ or execution of the will.

Where the testator played no part in the preparation of the will.

Where all or part of the will was included by mistake, in the sense that words were included without the knowledge and approval of the testator.

Question 14

What must be added to the end of the will if the testator is blind, illiterate or another person signed the will on the testator’s behalf?

Answer 14

A statement that the will was read over to the testator, or read by the testator who knew and approved the contents.

Question 15

Where a testator with capacity appears to have known and approved the contents of the will, what must a person who wishes to challenge the will prove?

Answer 15

Force or fear (through actual or threatened injury), or

Fraud (eg after being misled by some pretence), or

Undue influence (where the testator’s freedom of choice was overcome by intolerable pressure, but their judgement remained unconvinced).

Question 16

What does undue influence in the context of wills mean?

Answer 16

Coercion or duress, not mere persuasion.

Question 17

What is the standard of proof for undue influence?

Answer 17

There must be strong evidence of undue influence otherwise a claimant will be penalised in costs.

Question 18

What are the formalities for executing a will under s.9 Wills Act 1837?

Answer 18

The will must be in writing.

The will must be signed by the testator or by some other person in his presence and by his direction.

The testator must have intended to give effect to the will by his signature.

The signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time.

Each witness either attests and signs the will or acknowledges his signature in the presence of the testator.

Question 19

What kind of signature is acceptable for a testator to sign their will?

Answer 19

Any kind of signature is acceptable
provided the testator intends the signature to represent their name.

Crosses and thumbprints have been accepted.

Question 20

What must the testator give to allow another person to sign on their behalf?

Answer 20

The testator must give the person a positive and discernible direction (verbal or non-verbal) that they want the person to sign on their behalf.

Question 21

What is required for the witnesses to be present?

Answer 21

Mental and physical presence

To be mentally present, the witnesses must be aware that the testator is signing a document.

To be physically present, they must see or be able to see the testator signing; there has to be an unobstructed line of sight between the witness and the testator.

Question 22

What is the rule under s.15 Wills Act 1837?

Answer 22

If either of the witnesses is a beneficiary under the will or is the spouse or civil partner of a beneficiary, the will remains valid but the gift to the witness or to the witness’s spouse/civil partner fails.

Question 23

What is a privileged will?

Answer 23

A will made on actual military service or by a mariner or seaman at sea may be in any form, including a mere oral statement.

Question 24

What is the only requirement for a privileged will?

Answer 24

The only requirement is that the ‘testator’ intends to dispose of his property after his death.

Question 25

When does the presumption of due execution arise?

Answer 25

If the will includes an attestation clause which recites that the s.9 formalities were
observed, such as: ‘Signed by the testatrix in our joint presence and then by us in hers’.

Question 26

What happens if the will does not contain an attestation clause?

Answer 26

HMCTS will require an affidavit of due
execution (or witness statement verified by a statement of truth) from a witness or any other person who was present during the execution, or, failing that, an affidavit of handwriting evidence to identify the testator’s signature.

Question 27

What is the Government Guidance for remote witnessing?

Answer 27

Witnessing pre-recorded videos is not permitted – the witnesses must see the will being signed in real-time.

The witnesses and testator can all be at different locations, on a three-way link, or two can be physically together with one at a remote location.

The testator must physically sign the will (or acknowledge an earlier physical signature). Electronic signatures are not permitted. The testator will date the will with the date of signature.

The will must then be taken or posted to the witnesses.

The witnesses must physically sign the will in the virtual presence of the testator, and, if possible, in the virtual or physical presence of each other.

The witnesses will sign with the date on which they are signing, which may be different from the date on which the testator signed and the date on which the other witness signs. The execution process is not complete until everyone has signed.