WAE Validity of Wills Flashcards
What happens if a valid will is not made?
The intestacy rules determine who will inherit
Requirements of a testator
Must be aged 18 or over, unless in the military.
Must have testamentary capacity, knowledge and approval, and meet the formal requirements
What is Banks v Goodfellow?
A testator must:
- Understand the nature of the act and its effects
(They must know they are signing a document that disposes of their property upon death.) - Appreciate the extent of their property
(A general recollection of assets and approximate value is sufficient.) - Recognise moral claims they should consider
- Have no disorder of the mind that affects their decision-making
Can a testator suffering from an insane delusion have testamentary capacity?
Yes, if that delusion is unconnected with and has no effect on the terms of the will
When must a testator have testamentary capacity?
At the time of execution.
EXCEPTION: Parker v Felgate – a will may still be valid if:
The testator had capacity when giving instructions.
The will was prepared in line with those instructions.
At execution, the testator understood they were signing a will based on previous instructions.
How does fluctuating capacity affect testamentary capacity?
A testator with intermittent capacity (e.g. dementia) may have valid lucid periods.
Temporary incapacity due to a life event (e.g. Key v Key – grief from a spouse’s death) can invalidate a will.
Key v Key
testator found to lack capacity because of grief
What is the ‘Golden Rule’ regarding will-making?
When taking instructions from an elderly or seriously ill testator, a medical practitioner should assess capacity.
Not a legal obligation but best practice.
Following it does not guarantee testamentary capacity.
Who has the burden of proving testamentary capacity?
Capacity is presumed if the will appears rational and is duly executed.
If challenged, the challenger must provide evidence to raise doubt.
This shifts the burden to the propounder of the will to prove capacity (Banks v Goodfellow test).
What happens if a person lacks testamentary capacity?
They cannot make a valid will. The court can authorise a statutory will if it is in their best interest (s.18(1) MCA 2005)
What are the requirements for knowledge and approval?
Testator must:
intend to make a testamentary document.
understand its contents and the choices made.
K + a presumed if the testator had testamentary capacity AND execution of the will complied with s.9 Wills Act 1837.
When is there no presumption of knowledge and approval?
- the testator is blind or illiterate
- someone else signs on their behalf
- suspicious circumstances exist
How can knowledge and approval be proven when there is no presumption?
Check the attestation clause:
It should confirm that the testator understood and approved the contents of the will.
If it doesn’t show this:
A sworn affidavit of knowledge and approval must be submitted with the will when applying for probate.
What is undue influence in will-making?
Re Edwards:
Testator is coerced into making a will against their true intention.
Distinction between persuasion and coercion.
Who has the burden of proving undue influence?
The person alleging it must provide evidence that the facts are inconsistent with any other explanation.
How does a testator’s physical and mental state affect undue influence?
A weak or ill testator is more susceptible to coercion. Key question is: did they act as a free agent?
What happens if only part of a will is affected by undue influence?
The remainder may still take effect if removing the influenced part does not “upset the whole tenor of what remains.” The court cannot add or substitute words.
What are the formal requirements for a valid will under s.9 Wills Act 1837?
A will must:
Be in writing and signed by the testator (or by someone in their presence and at their direction) (s.9(a)).
Show that the testator intended their signature to give effect to the will (s.9(b)).
Be signed or acknowledged by the testator in the presence of two or more witnesses present at the same time (s.9(c)).
Be attested and signed by each witness in the presence of the testator (s.9(d)).
(Will in Testator’s Sight) WITS - Writing, Intent, Two witnesses, Signed by witnesses in testator’s presence
Where should a testator sign a will to show intent under s.9(b) Wills Act 1837?
Signing at the end usually shows intent.
A signature at the beginning or middle may cause issues.
Can a mark constitute a signature under s.9(a) Wills Act 1837?
Yes, any mark may be a signature if the testator intends it to be.
What are the witness requirements under s.9(c) Wills Act 1837?
The testator must sign or acknowledge their signature in the presence of two or more witnesses present at the same time.
Witnesses must be physically and mentally present but do not need to know the document is a will.
Witnesses cannot be minors, blind, drunk, or of unsound mind.
What details should be recorded for each witness?
Full name, address, and occupation.
What are the witness signing requirements under s.9(d) Wills Act 1837?
Sign the will in the testator’s presence, OR
Acknowledge their signature in the testator’s presence.
Witnesses do not need to sign in each other’s presence.
What is the purpose of an attestation clause in a will?
It describes the circumstances under which the will was executed. While not legally required, a properly drafted attestation clause raises a presumption of due execution (compliance with s.9 Wills Act 1837).