WE 9 - formality

Question 1

How old must a testator be to make a valid Will?

Answer 1

18 - with exceptions for those in military service

Question 2

What is required for a valid will?

Answer 2

(a) it is in writing, and signed by the testator, or by some other person in his presence and by his direction; and

(b) it appears that the testator intended by his signature to give effect to the will; and

(c) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and

(d) each witness either

 (i) attests and signs the will; or

  (ii) acknowledges his signature,

in the presence of the testator (but not necessarily in the presence of any other witness), but no form of attestation shall be necessary.

Question 3

Where should the testator’s signature be on a will?

Answer 3

At the end of the will - signatures elsewhere can be problematic

Question 4

What is the minimum number of Witnesses to a testator signing a Will?

Answer 4

2

Question 5

What is the maximum number of Witnesses to a testator signing a Will?

Answer 5

There is no maximum

Question 6

What are the requirements of a witness to a testator’s signature?

Answer 6

Must be physically and mentally present but do not need to know a will is being signed or its terms

Question 7

Both witnesses must sign the will in front of the testator, but is it necessary for each witness to also sign in front of each other?

Answer 7

No

Question 8

What is an attestation clause?

Answer 8

An attestation clause describes the circumstances under which the will was executed.

Question 9

Is there a legal obligation to include an attestation clause?

Answer 9

No

Question 10

Can gifts under a Will be made to the attesting witnesses?

Answer 10

Not if they are one of only two witnesses

Question 11

Can a solicitor be paid if the attest they will?

Answer 11

Yes

Question 12

When can gifts to the attesting witnesses be made?

Answer 12

If there are at least two other witnesses not caught by s 15, or if the will is subsequently confirmed by a properly executed codicil, the effect of s 15 can be disregarded;

Question 13

At what time does ‘knowledge and approval’ of a will by a testator apply?

Answer 13

At the time of execution, unless the exception in Parker v Felgate applies

Question 14

If the testator has testamentary capacity, is ‘knowledge and approval’ generally presumed?

Answer 14

Yes

Question 15

If the testator has testamentary capacity, when is ‘knowledge and approval’ not presumed?

Answer 15

The testator is blind or illiterate (ie unable to read the will)

The will was signed by someone on behalf of the testator

There are suspicious circumstances (e.g. the will was prepared by a key beneficiary or their relative)

Question 16

What is this attestation clause used for:

Signed by A (who understands French but cannot read English) in the presence of both of us and then by us in A’s presence after the will had been read aloud to A in English and accurately translated by B who understands English and French in our presence when A seemed thoroughly to understand and approve the contents.

Answer 16

unable to read English

Question 17

What is this attestation clause used for:

Signed by A in B’s name and on behalf of B (who is physically incapable of signing), in the presence of both of us and at B’s direction, and then by us in their presence, when the testator seemed thoroughly to understand and approve the contents.

Answer 17

physically unable to sign

Question 18

What is this attestation clause used for:

Signed by A in the presence of both of us, then by us in the testator’s presence after this document had been read over by B to the testator when the testator seemed thoroughly to understand and approve the contents.

Answer 18

blind