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Question 1

What are the key requirements for a valid will?

Answer 1

The testator must have testamentary capacity, understand and approve the will’s contents, and comply with the formal requirements of s.9 of the Wills Act 1837.

Question 2

What is testamentary capacity?

Answer 2

The mental ability to make a valid will

Question 3

What is the legal test for testamentary capacity?

Answer 3

The test established in Banks v Goodfellow, which requires the testator to: understand the nature and effect of making a will; appreciate the extent of their property; consider the moral claims of those they owe responsibility to; and not suffer from delusions that affect their judgment in making the will.

Question 4

When must testamentary capacity be present?

Answer 4

When the will is executed.

Question 5

What is the Parker v Felgate rule?

Answer 5

It allows for a valid will if capacity was present when instructions were given, and the testator understood they were signing a will based on those instructions.

Question 6

What is the Golden Rule in will-making?

Answer 6

A best practice guideline from Kenward v Adams advising that a medical practitioner assess the capacity of elderly or seriously ill testators.

Question 7

Who has the burden of proving testamentary capacity?

Answer 7

The propounder of the will (often the executor).

Question 8

Is capacity presumed if the will is rational and duly executed?

Answer 8

Yes

Question 9

What happens if a person lacks testamentary capacity?

Answer 9

The court may authorize a statutory will on their behalf.

Question 10

Does the Mental Capacity Act 2005 replace the Banks v Goodfellow test for wills?

Answer 10

No. If the two tests result in different outcomes, the common law test prevails.

Question 11

What is the knowledge and approval requirement for a valid will?

Answer 11

The testator must understand they are creating a testamentary document that disposes of their property upon death, and they must know and approve of the will’s contents.

Question 12

When should knowledge and approval be present?

Answer 12

When the will is executed, unless the Parker v Felgate exception applies.

Question 13

Is knowledge and approval presumed if the testator has capacity and the will is rational?

Answer 13

Yes

Question 14

In what circumstances is there no presumption of knowledge and approval?

Answer 14

When the testator is blind or illiterate, someone else signs on their behalf, or suspicious circumstances exist (e.g., will prepared by a beneficiary).

Question 15

What is an affidavit of knowledge and approval?

Answer 15

A sworn statement confirming the testator knew and approved the will’s contents, often required when a presumption is lacking.

Question 16

What is undue influence in the context of wills?

Answer 16

When someone coerces the testator into making will provisions against their wishes.

Question 17

Is persuasion the same as undue influence?

Answer 17

No. Persuasion is lawful; undue influence involves coercion.

Question 18

Is there a presumption of undue influence in wills?

Answer 18

No. The burden of proving undue influence lies with the person making the claim.

Question 19

What key points did Re Edwards establish about undue influence?

Answer 19

Undue influence prevents genuine choice. Persuasion is not undue influence. Frailty makes a testator more susceptible to coercion. Fairness of the will is irrelevant. The testator must have acted as a free agent.

Question 20

What is testamentary freedom?

Answer 20

The right of a testator to leave their property to whomever they choose in their will.

Question 21

What is the age requirement for making a valid will?

Answer 21

18 years old, with exceptions for those in military service.

Question 22

What are the formal requirements for a valid will under s.9 Wills Act 1837?

Answer 22

Writing, signature, intention, witnessing, and witness signatures.

Question 23

What are the witnessing requirements for a valid will?

Answer 23

The testator’s signature must be made or acknowledged in the presence of at least two witnesses present at the same time. The witnesses must then sign the will in the testator’s presence.

Question 24

What is an attestation clause?

Answer 24

A clause in a will describing the circumstances of its execution, helping to establish a presumption of due execution.

Question 25

What happens if a beneficiary witnesses the will?

Answer 25

Any gift to the witness (or their spouse) is void under s.15, though the will remains valid.

Question 26

What is the purpose of non-dispositive clauses in a will?

Answer 26

To provide instructions and appoint individuals to manage the estate, without directly disposing of assets.

Question 27

What is the typical structure of a will?

Answer 27

Commencement, revocation, burial/funeral wishes, appointment of executors and trustees, appointment of guardians, administrative clauses, date, and attestation.

Question 28

What is the purpose of a revocation clause?

Answer 28

To declare that any previous wills or codicils are revoked, ensuring clarity about the testator’s intentions.

Question 29

What is the difference between an executor and a trustee?

Answer 29

Executors are responsible for administering the estate, while trustees manage ongoing trusts, if any.

Question 30

What happens if a named executor is divorced from the testator after the will is made?

Answer 30

The appointment is void unless the will states otherwise.

Question 31

What are administrative clauses in a will?

Answer 31

Clauses detailing the powers of the executors and trustees, which can be express or implied.

Question 32

What is the purpose of dispositive clauses in a will?

Answer 32

To specify the distribution of the testator’s assets, outlining what property goes to whom.

Question 33

What is the traditional order of disposition in a will?

Answer 33

Specific gifts, general gifts, and residuary gifts.

Question 34

What is a specific gift?

Answer 34

A gift of a particular, identifiable item owned by the testator at death.

Question 35

What happens if a specific gift no longer exists at the testator’s death?

Answer 35

The gift fails (adeems) unless the will includes a substitution clause.

Question 36

What are chattels in the context of a will?

Answer 36

Personal possessions, typically defined by s.55(1)(x) of the Administration of Estates Act 1925.

Question 37

What are general legacies?

Answer 37

Gifts of non-specific items of property, where the estate must provide the item if it’s not part of the estate at death.

Question 38

What is a pecuniary legacy?

Answer 38

A gift of a specific sum of money.

Question 39

What is a residuary gift?

Answer 39

A gift of all the remaining assets in the estate after debts, expenses, and other legacies have been paid.

Question 40

What are substitution clauses in a will?

Answer 40

Clauses providing alternative beneficiaries in case a primary beneficiary dies before the testator.

Question 41

What is a class gift in a will?

Answer 41

A gift to a group of individuals (e.g., “all my grandchildren”).

Question 42

What is the difference between a vested and a contingent interest?

Answer 42

A vested interest is an absolute right, while a contingent interest requires a condition to be met.

Question 43

What is s.33 of the Wills Act 1837?

Answer 43

A provision stating that if a child or descendant predeceases the testator, their share passes to their issue unless the will expressly excludes this.

Question 44

What is the cy-près doctrine?

Answer 44

A doctrine that allows charitable gifts to be redirected to similar charities if the original charity no longer exists.

Question 45

What is the purpose of the Inheritance (Provision for Family and Dependants) Act 1975 (IPFDA 1975)?

Answer 45

To allow certain individuals to challenge a will or intestacy if they believe they have not been adequately provided for.

Question 46

Who is eligible to make a claim under the IPFDA 1975?

Answer 46

Spouses, former spouses, cohabitants, children, treated children, and dependents of the deceased.

Question 47

What is the time limit for making an IPFDA 1975 claim?

Answer 47

Six months from the grant of representation.

Question 48

What are the grounds for an IPFDA 1975 claim?

Answer 48

That the deceased’s will or intestacy failed to make “reasonable financial provision” for the applicant.

Question 49

What types of orders can the court make under the IPFDA 1975?

Answer 49

Periodic payments, lump sums, transfer/settlement of property, and variation of trusts.

Question 50

What is the two-stage test for assessing IPFDA 1975 claims?

Answer 50

1. Did the deceased fail to make reasonable financial provision for the applicant?
2. If yes, what award should the court make?