Week 2- Validity

Question 1

What is the test for testamentary capacity (Banks v Goodfellow)?

Answer 1

T (testator) must:
1) Understand the nature of the act and its effects;
2) Appreciate the extent of the property of which they are disposing;
3) Understand and appreciate the moral claims which they ought to give effect to; and
4) **Have no disorder of the mind **that perverts their sense of right or prevents the exercise of their natural faculties in disposing of property by will.

Question 2

What does it mean to say T must understand ‘the nature of the act’ when doing a will?

Answer 2

T must understand that they are signing a document that takes effect on death and disposes of their property.

Question 3

What does it mean to say that T must appreciate the extent of the property they’re disposing of?

Answer 3

T should have a general recollection of what they own and appreciate the approximate value of their estate and relative value of its assets.

Question 4

What is the general rule regarding when T must have testamentary capacity?

Answer 4

T must have testamentary capacity at the time the will is executed.

This means when the doc is executed as a deed.

Question 5

What is are the 3 conditions for the Parker v Felgate exception to the timing of testamentary capacity to apply?

Answer 5

Even if T lacks testamentary capacity at the time of execution, the will is still valid if :
(1) T had testamentary capacity at the time they gave instructions for the preparation of the will; and
(2) The will was prepared in accordance with those instructions; and
(3) At the time of execution T understood they were signing a will for which they had previously given instructions.

Question 6

What is the golden rule with regard to testamentary capacity?

Answer 6

If doubt about testamentary capacity (eg client is v old or seriously ill), a medical practitioner should be instructed to make an assessment of the testator’s capacity, and a contemporaneous record of the assessment and conclusion should be made.

Question 7

What steps must be taken in approaching the medical practitioner?

Answer 7

1. Obtain T’s consent to consult medical practitioner
2. First approach family GP
3. Tell doctor (this will usually be GP) why you need their report i.e. explain the test for testamentary capacity

Question 8

Who bears burden of proving testamentary capacity?

Answer 8

Capacity is rebuttably presumed if the will on the face of it appears rational and has been duly executed.

Anyone who wishes to challenge the validity of the will on the grounds of lack of capacity must provide evidence sufficient to rebut the pres.

Question 9

What are the requirements for a valid will?

Answer 9

1. T has capacity
2. T has knowledge and approval of the particular will
3. The will is not the result of undue influence or duress
4. Executed as deed in compliance with s.9 WA 1867.

Question 10

What does it mean to say T has ‘knowledge and approval’?

Answer 10

At the time of execution (unless Parker v Felgate applies), T must have a general intention to sign and execute a testamentary document, and the specific intention to give effect to the terms of that particular document.

Question 11

Knowledge and approval are presumed where T has testamentary capacity. When is knowledge and approval not presumed?

Answer 11

• 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 12

When is an affidavit used to prove T had knowledge and approval?

Answer 12

Affidavit is used where:
(1) There is no presumption of knowledge and approval/pres has been rebutted; AND
(2) The attestation clause (which explains the circumstances under which the will was executed) does not address this

Question 13

Why might a specific attestation clause be used?

Answer 13

If there is some fact/circumstance which might cast doubt on T’s knowledge and approval, an attestation clause can be drafted to reflect the steps taken to ensure the testator fully understood the document they were signing.

Question 14

Give an eg of a specific attestation clause where T is physically incapable of signing the will

Answer 14

Signed by C in T’s name and on behalf of T (who is physically incapable of signing), in the presence of both of us and at T’s direction, and then by us in their presence, when T seemed thoroughly to understand and approve the contents.

Question 15

Define undue influence in the context of a will

Answer 15

A will executed under undue influence is one which (in whole/part) does not express T’s true intention. T has not genuinely exercised his own choice as a free agent but has surrendered to pressures they were not able to withstand. It goes **beyond mere persuasion. **

Question 16

Who bears the burden of proving undue influence? What evidence must be adduced.

Answer 16

The person alleging undue influence must adduce evidence which shows the facts are inconsistent with any hypothesis other than that T was unduly influenced.

i.e. high bar - must prove will is explicable only as a result of UI.

Question 17

How is T’s physical and mental condition relevant to an inquiry of undue influence?

Answer 17

T’s physical and mental strength are both relevant when determining how much pressure would be necessary to overbear the will.

A weak or ill testator may be more susceptible and for the sake of a quiet life may be induced to do anything.

Question 18

What happens if the court decides that part of a will was made under undue influence?

Answer 18

The rest may be given effect to provided that the omissions do not “upset the whole tenor of what remains”, but the court cannot add or substitute words.

Question 19

What are the requirements of s.9 WA 1837?

Answer 19

No will shall be valid unless—
(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 at least 2 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 20

Is there anyone who cannot be a witness to a will?

Answer 20

Anyone who lacks capacity i.e. a minor, blind person, drunk person, person of unsound mind.

Though NB: Witnesses must be physically and mentally present but do not need to know a will is being signed or its terms

Question 21

What raises the rebuttable presumption that the reqs of s.9 WA have been satisfied?

Answer 21

The inclusion of a properly drafted attestation clause. **All the clause does it describe the circumstances in which the will was made i.e. baso saying s.9 satisfied. **

Standard attestation clause:
‘Signed by [testator] in our joint presence
and then by us in his/hers’

Question 22

Who should not be a witness to a will (s.15 WA)? Is there any way round this rule? What do you think is best practice recommendation?

Answer 22

Anyone who is a beneficiary of the will. This is because **any gift to an attesting witness is void (s.15 WA). **

Way round: **If there are at least 2 other witnesses not caught by s.15, or if the will is subsequently confirmed by a properly executed codicil, s.15 has no effect.

Best practice: That being said, still best practice to use witnesses who are not gonna be beneficiaries. They can still be executors - s.15 only applies to beneficaries.

NB The will is not invalidated- s9 is still satisfied

Question 23

What is the general purpose and effect of IPFDA 1975?

Answer 23

Allows people who didnt get what they thought they should inherit from the deceased to complain, and potentially vary the contents of a will/intestacy after death. **It is an application to vary the will/intestacy. **

Question 24

What are the 3 conditions to be eligible to make an IPDFA claim?

Answer 24

Applicant must (s.1):
1. Be within the jurisdiction of IPFDA 1975 = domiciled in UK
2. Demonstrate that they fall within a recognised category of eligible applicants.
3. Make their claim within the prescribed time limit.

Question 25

Who are the 6 categorises of eligible IPFDA applicants?

Answer 25

1. A **spouse / civil partner **of the deceased.
2. A former spouse / civil partner who has not remarried or formed a subsequent civil partnership.
3. Cohabitee partner who lived with deceased as if they were spouses / civil partners for 2 years prior to their death.
4. A child of the deceased (includes adopted)
5. Treated by deceased as child of the family (eg step-child)
6. Any other person who was maintained (wholly or partly) by the deceased immediately before their death.

Must the 2 yrs in 3) be continuous?

Question 26

G is trying to claim she was maintained by the deceased immediately before his death- what must G prove (s.1(3))?

Answer 26

1) Financial maintenance: That the deceased was making a substantial contribution in money or money’s worth
2) Towards G’s reasonable needs,
3) That the contribution was NOT made for full valuable consideration pursuant to a commercial arrangement.

Question 27

What is the application deadline for making an IPFDA claim (s.3)?

Answer 27

6 months after the date of grant

Question 28

What factors will the court take into account when deciding whether to grant an extension of time for filing IPFDA claim?

Answer 28

• The circumstances surrounding the delay,
• Whether negotiations were commenced within the time limit,
• If the estate had already been distributed before notification of the claim, and
• Whether a refusal to allow the applicant to bring proceedings would leave them without recourse against anyone else.
• Whether applicant has arguable case fit to go to trial.

Question 29

In which court is an IPFDA claim commenced?

Answer 29

Either County Court or High Court (family division for spouse/cohabitee, chancery for all other)

Question 30

What are the grounds/the test for making an IPFDA claim?

Answer 30

Taking into account the competing interests of the applicant, other beneficiaries, and T’s wishes:
* that the deceased’s will did not make reasonable financial provision for the applicant; and/or
* that the distribution of the deceased’s estate under the intestacy rules fails to make reasonable financial provision for the applicant.

Question 31

What sorts of orders can a court make on a successful IPFDA application (s.2(1))?

Answer 31

• Periodical payments.
• Lump sum.
• Transfer of property.
• Settlement of property.
• Acquisition of property for transfer.
• Variation of marriage settlements.
• Variation of civil partnership settlements.
• Variation of the trusts on which the deceased’s estate is held (whether those trusts arise by will or intestacy).

Question 32

When is an order of the court on an IPFDA claim effective from?

Answer 32

The date of death of the deceased (T). Therefore, read back for tax purposes i.e. tax-efficient as no post-death tax liabilities arise.

Question 33

What are the 2 stages of assessing an IPFDA claim?

Answer 33

1. Did the deceased fail to make (objectively assessed) reasonable financial provision for the applicant?
2. If so, what award should the court make?

Question 34

As regards ‘reasonable financial provision, what is the difference between the standard to be satisfied for surviving spouses?

Answer 34

Surviving spouse: What is reasonable in all the circumstances
for a spouse / civil partner to receive
**(i.e. no maintenance requirement) **

Others: What is reasonable in all the circumstances for the applicant to receive for his/her maintenance

Question 35

What IPFDA applicants are treated as surviving spouses?

Answer 35

1. Former spouse / civil partner not remarried / entered new civil partnership,
2. Spouse who is judicially separated from the deceased (couple remains legally married);
3. Divorce, dissolution, nullity or judicial separation occurred within 12 months of the death; and
4. No order for financial provision has been made or refused in the ancillary proceedings.

NB the court has a general discretion to apply the surviving spouse standard to an applicant (s.14).

The last bit goes to the ‘reasonable financial provision’ ground

Question 36

What is meant by reasonable financial provision for the maintenance of the applicant?

Answer 36

Broadly, the courts consider the maintenance standard to require an assessment of what it would be reasonable for an applicant to live on (without either living in luxury or poverty). This is not the same thing as the actual standard of living that the claimant has enjoyed during the deceased’s lifetime (although this will be a relevant consideration).

Question 37

Financial resources- applicant, beneficiaries, estate

What factors must the court consider in assessing applications from all kinds of applicant (s.3(1))?

Answer 37

• The applicant’s financial resources and financial needs
• The financial resources and financial needs of any other applicants
• The financial resources and financial needs of any beneficiary of the estate
• Any obligations and responsibilities which the deceased had towards any applicants or beneficiaries
• The size and nature of the net estate of the deceased
• Any physical or mental disability of any applicant or beneficiary
• Any other matter the court considers relevant in the circumstances (including the conduct of the applicant or any other person)
• When considering a person’s financial resources and needs, the court must take into account any resources and needs they are likely to have in the foreseeable future.

Question 38

What factors are considered specifically in relation to surviving spouses (and those treated as such) (s.3(2))?

Answer 38

a) The** applicant’s age and the duration of the marriage.**
b) The contribution made by the applicant to the welfare of the family of the deceased, including any contribution made by looking after the home or caring for the family.
c) The provision which the applicant might reasonably have expected to receive in divorce / dissolution proceedings if the couple had ended their relationship at the date of death. (This does not apply if they are judicially separated.) This is guidance only and does not set a limit on the award that can be made.

Question 39

What factors are considered specifically in relation to cohabitees (s.3(2A))?

Answer 39

a) The age of the applicant and the length of the period of cohabitation.
b) The contribution made by the applicant to the welfare of the family of the deceased, including any contribution made by looking after the home or caring for the family.

Question 40

What factors are considered specifically in relation to children of the deceased (and those treated as such) (s.3(3))?

Answer 40

a) Whether and on what basis the deceased maintained the applicant, for what duration they did so and the extent of their contribution.
b) Whether and, if so, to what extent the deceased had assumed responsibility for the applicant’s maintenance.
c) Whether in maintaining or assuming responsibility for maintaining the applicant the deceased did so knowing that the applicant was not their child.
d) The liability of any other person to maintain the applicant.

Question 41

What additional factors must the court take into account in an application by sb maintained wholly/partly by deceased but not falling under any specific category?

Answer 41

a) **The length of time **for which and the basis on which the deceased maintained the applicant, and the extent of the contribution made by way of maintenance.
b) Whether and, if so, to what extent the deceased **assumed responsibility **for the maintenance of the applicant.

Question 42

When might the court exercise its power to award an IPFDA applicant a life interest in a property?

Answer 42

Where the applicant may simply want to continue to live in the family home, which was owned by the deceased.