WAE 2 - Will Validity Flashcards
What are the three main requirements for a valid will?
Testamentary capacity
Knowledge and approval
Formal requirements must be met
Who can make a will?
Any adult with capacity
Minors only if:
* They are married
* They are in military service
What is the Banks v Goodfellow test for testamentary capacity?
The testator must:
* Understand the nature of the act (making a will)
* Appreciate the extent of their property (general knowledge of assets)
* Understand and consider moral claims (without mental disorder affecting judgment)
Can a person with a mental disorder make a valid will?
Yes, if the disorder does not affect their judgment regarding the will.
If insane delusions impact their decisions about the will, they lack capacity.
When must testamentary capacity be present?
At the time of execution, unless Parker v Felgate applies:
* The testator had capacity when giving instructions.
* The will was prepared as per those instructions.
* The testator understood at signing that it was the will they had instructed.
Can a person lacking capacity still have a valid will?
Yes, via a statutory will
The court can authorize a will if:
* It is in the person’s best interests
* There is a reason to diverge from their existing testamentary position
When is knowledge and approval presumed?
When the will appears rational and is properly executed, unless:
* The testator is blind or illiterate
* The will was signed by someone else on their behalf
* There are suspicious circumstances (e.g., a key beneficiary prepared the will)
Who must prove knowledge and approval?
The propounder of the will (usually the executor)
If the presumption of knowledge and approval is challenged, the burden shifts to the propounder to prove the testator knew and approved the contents.
What is undue influence in relation to wills?
Coercion that forces the testator to make a will against their judgment
Re Edwards test: Undue influence must go beyond persuasion
Who must prove undue influence?
The person asserting it
There is no automatic presumption of undue influence
The court requires evidence
What are the formal requirements for a valid will under s9 Wills Act 1837?
Must be in writing
Signed by the testator (or someone in their presence & at their direction)
Testator’s intention must be clear by the signature
Signed in the presence of two witnesses at the same time
Witnesses must sign or acknowledge the testator’s signature
Who can be a valid witness to a will?
Not minors
Not blind, drunk, or of unsound mind
Should provide full name, address, and occupation
Cannot be beneficiaries – gifts to witnesses or their spouses are void
What is an attestation clause?
A clause that confirms proper execution of the will
Not legally required but raises a presumption of valid execution
What happens if a witness (or their spouse) is a beneficiary?
Their gift is void under s15 Wills Act 1837
The will remains valid
Exception: If there are two other non-beneficiary witnesses
