Validity of Wills and Intestacy

Question 1

What formalities are required under s 9 of the Wills Act 1837

Answer 1

1) In writing: any material but not electronic

2) Signed by the testator: or by another person in the testator’s presence and direction

3) Signature intent: testator must intend the signature to give effect to the will

4) Witnessed: by 2 or more witnesses present at the same time. Must also sign or acknowledge their signatures in the testator’s presence

Question 2

What is capacity in relation to the making of a will?

Answer 2

The testator must have sound mind, memory, and understand of the nature of making a will, the extent of their property, and the claims of beneficiaries.

Question 2

What is intention in relation to the making of a will?

Answer 2

‘Intention’ refers to the testator’s mental state, meaning they must have the intention to make the will voluntarily and understand the nature and effect of the will.

Question 3

What are privileged wills?

Answer 3

Privileged wills can be made orally or without witnesses by members of the armed forces in active duty or mariners at sea.

Question 3

How does mental incapacity affect the validity of a will?

Answer 3

A will may be invalidated if the testator lacks the mental capacity to understand the consequences of their decisions when making the will. Unless mental capacity was lost after the giving of instructions but before execution

Question 4

What is the presumption regarding paternity for illegitimate children in intestacy?

Answer 4

The law presumes that an intestate person is not survived by their father (or father’s relatives) unless paternity is proven or acknowledged (e.g., name on birth certificate)

Question 4

What happens if undue influence is proven in relation to a will?

Answer 4

If undue influence is proven, the will or the part influenced by the pressure can be declared invalid by a court

Question 4

Can adopted children inherit from their biological parents?

Answer 4

In circumstances where the child had a contingent interest in a deceased biological parent’s estate before adoption

Question 4

How do adopted children inherit under intestacy rules?

Answer 4

Adopted children inherit from their adoptive parents as if they were biological children

Question 4

How does the Human Fertilisation and Embryology Act 2008 define parenthood in assisted reproduction?

Answer 4

The woman who gives birth is the legal mother, and the father is the husband if consented to the treatment

Question 5

What are the main rules of intestacy if someone dies without a spouse and without children?

Answer 5

The estate is distributed among other relatives, starting with:

1) Parents, equally if alive

2) Siblings of whole blood on statutory trust

3) Siblings of half blood on statutory trust

4) Grandparents, equally if more than one

5) Uncles and aunts of whole blood on statutory trust

6) Uncles and aunts of half blood on statutory trust

7) Bona vacantia: the Crown, Duchy of Lancaster or Duke of Cornwall

Question 6

What does the spouse receive when the intestate is survived by both spouse and issue?

Answer 6

Personal chattels, a statutory legacy of £270,000, and interest.

Question 7

How is the remaining residuary estate divided when both a spouse and issue survive?

Answer 7

Half to the spouse absolutely, half held for the issue on statutory trusts

Question 8

What if the family home is solely in the intestate’s name?

Answer 8

It forms part of the residuary estate and is subject to intestacy rules

Question 9

What happens if a child of the intestate dies without a vested interest?

Answer 9

Their interest normally fails, but if they leave issue, they can be replaced

Question 10

What occurs when there is a surviving spouse or civil partner but no issue?

Answer 10

The whole estate passes to the spouse or civil partner absolutely

Question 11

Are stepchildren considered ‘issue’ of the deceased?

Answer 11

No, stepchildren are not considered ‘issue’ unless they are adopted

Question 12

What does the term ‘issue’ refer to in the context of intestacy?

Answer 12

‘Issue’ includes all direct descendants of the deceased, such as children, grandchildren, and great-grandchildren

Question 13

How does fear play in invalidating a will?

Answer 13

Fear may invalidate a will if the testator is coerced into making decisions through threats or intimidation

Question 14

How is ‘force’ considered in the context of a will’s creation?

Answer 14

Force refers to the physical or psychological pressure applied to a testator, which may render the will invalid due to lack of free will

Question 15

How can ‘fraud’ affect the validity of a will?

Answer 15

Fraud occurs when deceit is used to manipulate the testator’s intentions, such as misrepresenting facts to influence their decision

Question 16

What constitutes ‘undue influence’ in the context of a will?

Answer 16

Undue influence involves exerting improper pressure on the testator, undermining their free will when making decisions about their estate

Question 17

How does ‘mistake’ affect the validity of a will?

Answer 17

A mistake may invalidate a will if it causes the testator to misinterpret the effect of the will, resulting in provisions they did not truly intend. Mistaken words will be omitted