Validity Of Wills And Intestacy

Question 1

What is joint tenancy vs tenancy in common ?

Answer 1

Joint tenancy = property owned by other on death
Tenancy in common = equal shares

Question 2

Can executors be a witness ?

Answer 2

Yes

Question 3

Can a beneficiary be a witness ?

Answer 3

Yes they can be a valid witness but any gifts will be void. As witness cannot benefit from will (or spouse)

Question 4

What are the requirements of a valid Will ?

Answer 4

1) Capacity
2) Intention
3) Formalities of execution

Question 5

What is the test for capacity ?

Answer 5

Must be over 18 and must
A) understand the nature of their acts and broad effects
B) extent of their property and
C) moral claims they ought to consider.

Question 6

What is the golden rule for capacity ?

Answer 6

If testator lacks capacity, the will is void, if solicitor doubts mental state should ask medical practitioner to provide a written confirmation of capacity.

Question 7

What is the burden of proof with capacity ?

Answer 7

General rule is person asserting Will is valid must prove it. Vast number of cases presume testator satisfies mental capacity test.

Question 8

What is the meaning of intention?

Answer 8

Testator must have both general and specific performance, must intend to make the Will and know of the contents of the Will.

Question 9

What is the [Banks v Goodfellow] test in intention ?

Answer 9

Testator must understand
1) nature of their act
2) the extent of their property
3) moral claim they ought to have considered.

Question 10

What formalities are required for the Will to be valid ?

Answer 10

1) Must be in writing and signed by testator and another in presence.
2) intended signature to give effect to the Will
3) signature acknowledged by testator with two or more witnesses.

Question 11

What does the spouse receive upon intestacy rules ?

Answer 11

All personal chattels + statutory legacy (322k) + half of the rest of the estate.

Question 12

What happens to the part of estate that doesn’t pass to spouse ?

Answer 12

Primary beneficiaries are children (issue) and contingent upon them turning 18 then take vested interest.

Question 13

What happens if an issue dies before attaining vested interest ?

Answer 13

Interest fails although it can be replaced by their own issue

Question 14

How long after intestacy must spouse survive to take estate ?

Answer 14

28 days

Question 15

What is the order of intestacy ?

Answer 15

Issue on statutory trust -> parents equally -> brothers and sisters of whole on statutory trust -> brothers and sisters of half blood ok statutory trust -> grandparents equally

Question 16

What is not included in intestacy ?

Answer 16

• assets held jointly with another
• assets held on trust for deceased
• life insurance policies

Question 17

If there is no attestatoon clause what is true ?

Answer 17

No presumption of due execution and so someone present will need to swear an affidavit of due execution

Question 18

Is there always a presumption of capacity and knowledge ?

Answer 18

No there will be no presumption where there are suspicious circumstances

Question 19

Under intestacy if some siblings are alive and others aren’t who gets it ?

Answer 19

Alive siblings and dead siblings estates