W2 Flashcards
What is the significance of testamentary capacity in making a valid will?
To make a valid will, the testator must have testamentary capacity. This means they must understand the nature of the act, appreciate the extent of their property, understand and appreciate moral claims against their estate, and have no disorder of the mind that perverts their sense of right or prevents the exercise of their natural faculties in disposing of property by will.
What are the requirements for a valid will in England & Wales?
To make a valid will in England & Wales, a testator must be aged 18 or over, have testamentary capacity, understand the nature of the act and its effects, appreciate the extent of their property, understand and appreciate moral claims, and have no disorder of the mind that affects their judgment. No specific wording or form is required, and a testator has testamentary freedom to leave their property to whomever they choose.
What is the purpose of the golden rule in relation to making a will?
The golden rule suggests that when taking instructions for a will from an elderly or seriously ill client, a medical practitioner should be instructed to assess the testator’s capacity and make a contemporaneous record of the assessment and conclusion. While not a legal obligation, following the golden rule reduces the likelihood of later disputes regarding testamentary capacity.
What is the burden of proof in establishing testamentary capacity?
The burden of proof technically lies with the propounder of the will, who seeks to admit the will to probate. However, capacity is presumed if the will appears rational on the face of it and has been duly executed. If someone wishes to challenge the validity of the will based on lack of capacity, they must provide evidence sufficient to raise doubt.
What are the timing requirements for testamentary capacity?
A testator must have testamentary capacity at the time the will is executed. However, there is a limited exception established by Parker v Felgate, where a testator who lacks testamentary capacity at the time of execution can still make a valid will if they had capacity when giving instructions for the will and the will was prepared in accordance with those instructions.
What factors may affect a testator’s testamentary capacity?
A testator’s testamentary capacity may be affected by factors such as fluctuating capacity, particular life events, depression, and other mental health conditions. It is important to consider the effect of these factors on a testator’s decision-making abilities when assessing their testamentary capacity.
What happens if a person dies without making a valid will?
If a person dies without making a valid will, their assets will be distributed in accordance with a statutory order, which may not reflect their wishes. The intestacy rules will determine who will inherit the assets that were not disposed of by a valid will.
What is the concept of testamentary freedom?
Testamentary freedom refers to the ability of a testator to leave their property to whomever they choose. In England & Wales, no specific wording or form is required for a valid will, and a testator has the freedom to distribute their property as they wish.
What is the purpose of the IPFDA 1975 in relation to wills?
The IPFDA 1975 allows certain individuals to make claims against an estate if they have not been adequately provided for in a will. It sets out the time limit, applicants, and grounds for such claims.
What are the formal requirements for making a valid will?
No specific wording or form is required to make a valid will in England & Wales. However, a testator must be aged 18 or over, have testamentary capacity, understand the nature of the act and its effects, appreciate the extent of their property, understand and appreciate moral claims, and have no disorder of the mind that affects their judgment.
When can a solicitor accept instructions for the preparation of a will from a client?
A solicitor should not accept instructions for the preparation of a will if the client lacks testamentary capacity. However, if the court authorizes the execution of a will on behalf of an adult who lacks capacity, a solicitor may proceed with the instructions.
What are the requirements for making a valid will?
To make a valid will, a testator must have testamentary capacity, know and approve of the contents of their will, and comply with the requirements of the Wills Act 1837. Additionally, the testator must intend to make a will and intend to make the will they sign, which requires knowledge and approval of its contents.
What is the significance of knowledge and approval in the validity of a will?
Knowledge and approval are essential for the validity of a will. They are presumed if the testator has testamentary capacity, but the presumption can be rebutted in the presence of suspicious circumstances. Lack of knowledge and approval can render a will invalid. The burden of proof then shifts to those seeking to enforce the will.
What is the effect of undue influence on the validity of a will?
A will (or gift within it) made as a result of undue influence will be invalid. Undue influence occurs when a testator is coerced into making a will or including particular terms against their judgment and true intention. It goes beyond persuasion and requires evidence to prove.
What is the significance of the attestation clause in proving knowledge and approval?
If there is no presumption of knowledge and approval, an attestation clause that addresses knowledge and approval can help prove its presence when submitting the will to probate. It may also be possible to take steps in advance to mitigate the risk of having to prove knowledge and approval later.
What is the distinction between undue influence and persuasion in relation to wills?
Undue influence occurs when a testator is coerced into making a will or including particular terms against their judgment and true intention. It goes beyond persuasion, which involves convincing the testator through a convincing argument. The distinction between the two is not always clear and depends on the presence of coercion.
What is the burden of proof in establishing undue influence in relation to wills?
The burden of proving undue influence lies with the person making the allegation. The court requires evidence to demonstrate that the testator was coerced into a course of action and did not genuinely exercise choice. There is no presumption of undue influence in relation to testamentary dispositions.
What is the purpose of an affidavit of knowledge and approval in relation to wills?
An affidavit of knowledge and approval may be needed when submitting a will to probate if there is no presumption of knowledge and approval. It can help provide evidence of knowledge and approval when the attestation clause does not address this aspect.
How can the risk of having to prove knowledge and approval be mitigated in advance?
To mitigate the risk of having to prove knowledge and approval later, steps can be taken in advance. For example, if a client has a medical condition that renders them unable to read or understand the will, the attestation clause can be drafted to reflect the steps taken to ensure the testator fully understood the document they were signing.
What are the requirements for a valid attestation clause in relation to wills?
The requirements for a valid attestation clause depend on the circumstances. For example, if a testator is blind, unable to read English, or physically unable to sign, the attestation clause should reflect these conditions and the steps taken to ensure the testator understood the document they were signing.
How does the physical and mental strength of the testator affect the determination of undue influence?
The physical and mental strength of the testator are relevant when determining how much pressure would be necessary to overbear the will. A weak or ill testator may be more susceptible to undue influence.
What is the relevance of fairness in determining the validity of a will?
Whether or not the court considers the testator’s will to be fair is irrelevant. The question is whether, in executing the will, the testator acted as a free agent.
What are the formal requirements for making a valid will according to the Wills Act 1837?
To make a valid will, a testator must have testamentary capacity, know and approve of the contents of their will, and comply with the requirements of section 9 of the Wills Act 1837. This includes the will being in writing, signed by the testator (or someone else on their behalf), and witnessed by two adult witnesses.
What happens if a beneficiary acts as a witness to a will?
If a beneficiary (or their spouse/civil partner) acts as a witness to a will, the gift to the beneficiary is void. However, the will as a testamentary document remains valid.