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?
The testator must intend to make a testamentary document.
They must understand its contents and the choices made.
Knowledge and approval are 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?
The attestation clause should reflect the steps taken to ensure the testator fully understood the document they signed.
If it does not, an affidavit of knowledge and approval would be needed when submitting the will to 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).
What happens if a will lacks a properly drafted attestation clause?
Due execution must be proven (e.g. by an affidavit of due execution sworn by witnesses).
The will is not automatically invalid, but proving its validity may be more difficult.
When should an attestation clause be amended?
When special circumstances exist, such as a testator being blind, illiterate, or physically unable to sign. This helps prove knowledge and approval.
What is the consequence of an attesting witness (or their spouse) being a beneficiary under the will?
Their gift is void. The will remains valid, but the witness cannot inherit under it.
Does a witness being a beneficiary affect their role as executor?
No. A beneficiary-witness can still act as executor, even if s.15 voids their inheritance.
Can a professional executor witness a will?
Yes. Under s.28(4)(a) Trustee Act 2000, they can still receive remuneration for acting as executor, despite s.15.
What is the effect of s.15 Wills Act 1837
Any gifts to an attesting witness or their spouse are void.
How can a beneficiary-witness still inherit under a will?
s.15 does not apply if:
Two other witnesses not caught by s.15 also witness the will.
A properly executed codicil later confirms the will.
Is a revocation clause necessary in a will?
No, but it avoids uncertainty. Without it, a later will only revokes earlier wills where inconsistent.
Are burial and funeral wishes legally binding in a will?
No, but personal representatives usually follow them if practical.
What are the different types of gifts in a will?
Specific gifts – Identifiable assets (e.g. “my Rolex watch”).
General gifts – Non-specific assets (e.g. “a car” without specifying which one).
Pecuniary gifts – Fixed sums of money.
Residuary gift – Everything left after specific and pecuniary gifts.
What are the final clauses in a will?
Administrative clauses – Give executors/trustees necessary powers.
Date & Attestation – Confirms the will’s execution.
What are the key introductory clauses in a will?
Commencement – Identifies the testator (name, address, aliases).
Revocation – Cancels prior wills/codicils to prevent conflicts.
Burial/Funeral Wishes – Not legally binding but usually followed.
Appointment of Executors & Trustees – Names those responsible for managing the estate.
Appointment of Guardians – Names guardians for minor children.
Why should a testator’s aliases be included in a will?
If assets are held in different names, the grant of representation must match all aliases to avoid delays in estate administration.
What is the role of a personal representative (PR)?
To collect in the deceased’s assets, settle debts and expenses, and distribute the estate correctly (s.25 AEA 1925).
What is the difference between an executor and an administrator?
Executor – PR appointed by will, derives power from the will.
Administrator – PR appointed under the Non-Contentious Probate Rules (NCPR) when no executor is appointed or able to act.
Who cannot be an executor?
A minor.
A person lacking mental capacity.
A bankrupt person can act, but it is unwise due to potential limitations.
How many executors should be appointed?
Minimum: 1 executor.
Maximum: 4 can apply for a grant of representation.
If more than 4 are named, power is ‘reserved’ for the others to apply later.
What does it mean for power to be reserved?
An executor will not be actively involved in the administration of the Estate, but reserves the right to do this at a later date
What happens if an appointed spouse/civil partner later divorces?
Unless stated otherwise, their appointment becomes ineffective (s.18A/C Wills Act 1837).
How can an executor’s appointment be qualified?
By time – Only valid for a fixed period or if they survive the testator for a set time.
By location – Limited to assets in a specific jurisdiction (e.g. UK only).
By type of assets – Limited to specific asset classes (e.g. business assets only).
What happens if an executor’s appointment is unclear?
The appointment may be void due to ambiguity.
When should at least two trustees be appointed?
If a trust is created (e.g. minor beneficiaries), there should be at least two trustees or a trust corporation.
Can an executor also be a trustee?
Yes, the same person can act in both roles.
Can a law firm be appointed as executor?
No, a partnership has no separate legal identity. Instead, all profit-sharing partners at the date of death are appointed.
How can a testator limit the number of partners acting as executors?
By specifying that only one or two partners should act.
Can an LLP or trust corporation be appointed as executor?
Yes, both have legal capacity to act as sole executor and trustee.
Can an executor charge for their services?
Only professional executors/trustees can charge (s.29 TA 2000).
They should include an express charging power in the will.
Is payment for services a breach of fiduciary duty?
No, receiving payment under s.28 TA 2000 or an express charging clause is not a breach.
Who can appoint a guardian for minor children?
A testator with parental responsibility can appoint a guardian by will (s.5 Children Act 1989).
When does a guardian’s appointment take effect?
Usually after the death of the surviving parent.
What should be considered when appointing guardians?
Obtain their consent (not legally required but advisable).
Consider financial provision for the guardian.
Ensure jointly appointed guardians can work together effectively.
What is the difference between an executor and a trustee?
Executor – administers the estate and distributes assets; role ends once assets are fully distributed.
Trustee – manages ongoing trusts created under the will; role continues as long as the trust exists.
Why do executors and trustees need administrative powers?
They are not beneficial owners of the assets they manage, so they need express powers in the will to act beyond statutory and common law powers.
What happens if a will does not include express administrative powers?
Only statutory and common law powers apply. Express powers in the will override them where there is a conflict.
What is the purpose of the attestation clause?
It describes how the will was signed and confirms it was executed in compliance with s.9 Wills Act 1837.
Where should the date of the will be included?
Either in the attestation clause or in the commencement, but not both.
What is the difference between a legacy and a devise?
Legacy – a gift of personal property or cash.
Devise – a gift of real property (land).
What is the order of gifts in a will?
Non-monetary gifts (e.g. jewellery, furniture).
Cash gifts (pecuniary legacies).
Residue (remaining estate after debts, expenses, and gifts).
What is a specific gift?
A gift of a particular item owned by the testator at the date of death.
What happens if a specific gift no longer exists when the testator dies?
The gift adeems (fails), and the beneficiary receives nothing unless a substitute gift is provided.
Why might a will modify the statutory definition of chattels?
To include or exclude specific assets, ensuring the gift is clear and does not fail for uncertainty.
What is the statutory definition of chattels in s.55(1)(x) AEA 1925?
Includes:
Tangible movable property (e.g. vehicles, furniture, pets).
Excludes:
Money or securities for money.
Items used solely or mainly for business.
Items held solely as an investment.
When does land form part of the succession estate?
Sole ownership – passes under the will.
Joint tenancy – passes automatically to the surviving owner.
Tenancy in common – testator’s share passes under the will.
What must be included in a specific gift of land?
Full address and title number (if registered).
A clause stating what happens if the testator no longer owns the property.
Confirmation that the property can pass under the will (e.g. sever joint tenancy if necessary).
Consideration of any third-party interests (e.g. co-owners, mortgages, trusts).
Tax planning (e.g. Residence Nil Rate Band).
How does a general legacy differ from a specific gift?
A general legacy is not tied to a specific asset. If the item is not in the estate at death, the PRs must purchase it for the beneficiary.
Are pecuniary legacies specific or general?
Most are general legacies (e.g. “£10,000 to X”).
How does a trust fund that the testator was a beneficiary of pass in relation to their will?
Trust funds are treated separately from assets in the will, passing according to the terms of the original trust rather than being included in the estate
What is the general class closing rule?
A class closes when any one member of the class first becomes entitled in possession.
If no contingency applies, or at least one of the class chas already satisfied the contingency when the testator dies, the class closes on the date of death
What is the effect of s.33 of the Wills Act 1837?
Enables the gift to be shared equally between the issue of the deceased beneficiary, provided no contrary intention is expressed in the will
When does s.33 of the Wills Act 1837 apply?
Testator leaves a gift to their issue. The intended beneficiary dies before the testator, leaving descendants of their own who are living at the testator’s death
What happens if a will appoints “a” or “any one” partner from a law firm as executor?
The appointment is void for uncertainty.
Why is it important to specify who can give a valid receipt for a charitable gift?
Without specifying a person or office, all members or potential beneficiaries may need to sign a receipt, which is impractical.
What considerations are there when drafting gifts to charities or unincorporated associations?
Ensure the charity exists, using its full name and address.
Account for name changes, amalgamations, or closure.
Specify who can give a valid receipt (e.g. the treasurer).
Consider the cy-pres doctrine for charitable gifts if the charity no longer exists.
What is the cy-pres doctrine?
Under S.62 Charities Act 2011, if a charity no longer exists, a gift can go to another charity with a similar purpose.
Ensure the will clearly reflects the testator’s intention in such cases.
