Validity of Wills and How Property Passes on Death

Question 1

What types of property will pass outside of a will or the intestacy rules?

Answer 1

• Property owned by beneficial joint tenants will pass by survivorship - Property owned as tenants in common will pass under will/intestacy
• Life assurance policies paid to a specified individual
• Pension benefits where testator dies in service are usually paid at discretion of pension fund
• Trust property where T only has a life interest - the trust property will devolve according to the terms of the trust and not the deceased’s will

Question 2

What are the three broad requirements for a valid will?

Answer 2

Testamentary capacity

Testamentary intention

S9 Wills Act formalities

Question 3

What are the Banks v Goodfellow requirements for testamentary capacity?

Answer 3

Defined broadly as ‘soundness of mind, memory and understanding.’ Testators must be 18 or over and:

1) Shouldn’t be suffering from mental disorder

2) Must know the extent of property you are disposing of

3) Must know of the beneficiaries to whom you are disposing possessions and the moral claims they ought to consider

4) Must know they are making a will which carries out wishes after death

Question 4

When is testamentary capacity needed?

Answer 4

• At the time of execution of the will
• Parker v Felgate exception - a will can be valid if the testator has capacity when they give instructions, even if they lose capacity by the time its executed

This exception applies provided: instructions given to a solicitor, will prepared in accordance with instructions, and, at time of signing, testator appreciates they are signing a will prepared in accordance with their instructions

Question 5

What is the ‘golden rule’ in relation to testamentary capacity?

Answer 5

If a solicitor is unsure about a testator’s mental capacity when preparing a will, the solicitor should ask a doctor to provide a written report confirming testamentary capacity and ask the doctor to witness the will. The solicitor should record their view of testamentary capacity in a file note, in case of challenge of validity after death

Question 6

What presumptions exist in terms of capacity?

Answer 6

There is a presumption of capacity, which applies if the will is rational on its face and the testator showed no evidence of mental confusion before making the will

Someone challenging validity based on capacity will then have the burden to prove lack of capacity - person challenging validity has burden to prove it isn’t valid

Question 7

What is meant by testamentary intention?

Answer 7

When the will is signed, the testator must intend to make a will (general intention) and must also intend to make the particular will now being executed (specific intention)

Testator must know and approve the contents of the will at the time of execution (Parker v Felgate exception applies)

Question 8

What presumptions exist in terms of intention?

Answer 8

Usually, a presumption of knowledge and approval arises, so long as the testator has capacity and has read and executed the will - person challenging validity has burden to prove it isn’t valid

Doesn’t apply where:

• Testator is blind/illiterate/someone else signed on their behalf; HMCTS will require evidence to prove knowledge and approval before issuing a grant of probate
• There are suspicious circumstances surrounding the drafting or execution of the will (ie major beneficiary prepared it)

Question 9

If someone wishes to challenge a will on the grounds of intention, what must they prove?

Answer 9

One or more of the following:

1. Force or fear
2. Fraud
3. Undue influence – means coercion or duress; to prove this would require evidence from family, friends and carers and is very difficult

• If the claim is made on insufficient evidence, the claimant will be penalised in costs

4. Mistake – presumption of knowledge and approval does not apply if all or part of the will was included by mistake

• Words included without their knowledge and approval will be omitted from probate

Question 10

What are the formalities required for a valid will?

Answer 10

• In writing
• Signed by the testator and this signing was witnessed by two people (both present at the same time) - Someone else can sign for the testator if this is done in their presence and at their direction
• Each witness must sign the will in the presence of the testator, but not necessarily in presence of one another - they must be aware the testator is signing something and must see the signing clearly (unobstructed view)
• Both witnesses can acknowledge the testator’s signature if not present at signing stage (confirm the signature is the testator’s) - they must both be present at once in front of testator do so

Question 11

What happens if a beneficiary or the spouse/civil partner of a beneficiary witnesses a will being signed?

Answer 11

This gift will fail, but the will remains valid

Question 12

What happens if a cohabitee of the beneficiary witnesses the will?

Answer 12

Gift remains valid and they count as a witness

Question 13

What presumptions exist in terms of formalities?

Answer 13

Usually a presumption of due execution, provided the will includes a clause that the s9 formalities were observed (an attestation clause)

Anyone challenging the will on these grounds has the burden of proving it was not validly executed - person challenging validity has burden to prove it isn’t valid

If the will does not have an attestation clause, HMCTS will require an affidavit of due execution from a witness, an affidavit of handwriting evidence to identify the testator’s signature or they will refer the case to a judge