Validity of wills and intestacy Flashcards
Property passing outside the will and intestacy rules - Definition
A no. of different kinds of property pass independently of the terms of any will or the intestacy rules. E.g:
- Joint property
- Insurance policies
- Pension benefits
- Trust property
Property passing outside the will and intestacy rules - Joint property
Where property is held by more than one person as beneficial joint tenants on the death of one joint tenant their interest passes by survivorship to the surviving joint tenants. However if its held as tenants in common then it will pass to their will
Property passing outside the will and intestacy rules - Trust property
The deceased may have had an equitable interest as a beneficiary of a trust. Many equitable interests come to an end on the beneficiary’s death in these situations the trust property will devolve according to the terms of the trust and not the deceased life tenant’s will. Life interests cannot be transferred via will
Requirement for a valid will - Capacity - Requirements
- Must be 18+
- Must have requisite mental capacity - must understand the nature of their act and its broad effects, the extent of their property, the moral claims they ought to consider - implications of what they’re doing
Requirement for a valid will - Capacity - General rule
Testators must have capacity at the time they execute their wills. If the testator lacks capacity the will is void
Requirement for a valid will - Capacity - Exception
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.
Requirement for a valid will - Capacity - What should a solicitor do for a testator whose mental state is in doubt?
A solicitor must follow the golden rule - 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.
Requirement for a valid will - Capacity - Presumption of capacity
The presumption applies if the will is rational on its face and the testator showed no evidence of mental confusion before making the will - mental capacity is presumed to have continued from when you made the will.
Requirement for a valid will - Intention - General rule
When the will is signed the testator must have both general and specific intention. The testator must intend to make a will as opposed to any other sort of document. The testator must also intend to make the particular will being executed
Requirement for a valid will - Capacity - Presumption of knowledge and approval
A testator who has capacity and has read and executed the will is presumed to have the requisite knowledge and approval - he knew and approved of the contents. If they signed it themselves and had capacity then it is presumed they had the intention
Requirement for a valid will - Capacity - Presumption of knowledge and approval - When this presumption doesn’t apply
Presumption doesn’t apply if a major beneficiary prepares the will! Unless there’s evidence that this is what the testator wanted. Also doesn’t apply if the testator is blind/illiterate/not signing properly, there’s suspicious circumstances, force, fear, fraud, undue influence and mistake
Requirement for a valid will - Formalities of execution
No will shall be valid unless:
- It is in writing and signed by the testator or by some person in his presence and by his direction
- It appears that the testator intended by his signature to give effect to the will
- 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: Attest and signs the will, acknowledges his signature
Requirement for a valid will - Formalities of execution - Exception
One exception to the rule that wills must comply with the requirements of creating a will. 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
Requirement for a valid will - Formalities of execution - Presumption of due execution
Arises if the will includes a clause which recites that the formalities were observed - an attestation clause. If the will doesn’t contain this clause the Probate registry will require an affidavit of due execution from a witness or any other person who was present during the execution
Intestacy - The operation of the intestacy rules - When they apply
1) When there is no will either because the deceased never made a will at all or all wills have been successfully revoked
2) Where there is a will but it is invalid or if it is valid but fails to dispose of any of the deceased’s estate
3) Where there is a valid will but it fails to dispose of all the deceased’s estate - this will occur if the will simply omitted a gift of residue or if a residuary gift fails
