Will Capacity Flashcards
What 2 things must testator have before can make will?
Capacity
Intention
What is the traditional test for capacity?
Soundness of mind, memory and understanding
Banks v Goodfellow
What 3 specific things must testator have understood to have capacity under Banks v Goodfellow?
Nature of the act of making a will and broad effects
Extent of their property
Moral claims to which they ought to give effect
Generally, at what time must testator have capacity?
When will is executed
What is the exception to the rule on timing of capacity?
Had capacity when gave instructions
Will prepared in accordance with instructions
Time of executing, testator was capable of understanding that he was executing a will for which he gave instructions
Who has the burden of proof for capacity?
Person trying to have will admitted to probate (executors)
What is the presumption for capacity?
Person had it if it appears to be rational on its face
Who has the burden of proof when capacity is brought into question?
Originally the person propounding but if looks valid on the face it SHIFTS to those opposing the will
Only if there is sufficient evidence to the contrary does the propounder have to prove capacity
When will capacity not be presumed?
If the person has a known long-term serious disability
What is best practice when making a will for somebody with a long term condition?
Get a medical report when making the will
What is the golden rule for making a will when somebody might not have capacity?
Have the will witnessed by a medical practitioner
In addition to capacity, what other attitude must a testator have about their will?
Knowledge and approval of the contents
What happens if testator doesn’t have knowledge/approval of the will?
Will is invalid
When does testator need to have knowledge and approval?
When executing
OR EXCEPTION
When instructing a professional
When is knowledge/approval often an issue?
Fraud/undue influence
Blind, illiterate, deaf, mute
Signed on behalf without relevant attestation clause
Sus circumstances
Mistake made when drafting
What is meant by undue influence?
Imposing pressure to person legal act that doesn’t reflect the true wishes/intentions
What happens to a will executed as undue influence?
Void
Who has the burden of proof for undue influence?
Person challenging
In practice, what is the threshold for undue influence?
Coercion by force or threats
What are all 3 broad criteria for capacity?
18+
Mental capacity (Banks v Goodfellow)
Knowledge and approval of contents
