Will Formalities

Question 1

What are the requirements for a valid will?

Answer 1

In writing and signed by the testator or some other person in his presence and by his direction

Appears testator intended his signature to give effect to the will

Signature made/acknowledged by testator in presence of 2+ witnesses

Each witness either
- attests and signs will
- acknowledges his signature in presence of testator

Question 2

What happens if a will is written part in ink and part in pencil?

Answer 2

Pencil parts are presumed not to be permanent/final and are excluded

Question 3

What counts as the testators signature?

Answer 3

Any mark

Question 4

What happens if testators signature does not look like their normal signature?

Answer 4

Doesn’t matter

Question 5

Is a photocopied signature valid?

Answer 5

Only if the absence from the original will is explained

Question 6

What evidence is required to support a photocopied will?

Answer 6

Affidavit

Question 7

Who can sign a will on the testators behalf?

Answer 7

Anyone – no restrictions

But attestation clause must explain the full circumstances

Question 8

What happens if will isn’t signed at the bottom?

Answer 8

Can raise concerns about whether whole will was meant to be signed

Affidavit is needed

Question 9

How many will witnesses are required?

Answer 9

2

Question 10

What exactly do the witnesses have to see?

Answer 10

Just have to be aware that the testator is writing

or must witness testator acknowledging that the signature is there own

Have the opportunity to see the signature

Question 11

What are the requirements for proper acknowledgement of their signature by the testator?

Answer 11

Signed be4 acknowledged

No other specific words or actions

Question 12

What does it mean that the witness must be PRESENT for signing or acknowledging?

Answer 12

Line of sight

Question 13

Do both witnesses have to be there at the same time when testator is acknowledging their signature?

Answer 13

Yes

Question 14

Does the witness have to see the other witness sign or acknowledge their signature?

Answer 14

No, you only need both for the testator

Question 15

Does the testator actually have to see each witness sign?

Answer 15

No, as long as they were in line of sight (unless blind)

Question 16

What happens if a witness didn’t sign the will in the testators presence?

Answer 16

Can still be valid as long as witness acknowledges that he did sign it earlier

Question 17

Do witnesses need to know the document is a will?

Answer 17

No

Question 18

Do witnesses need to be aware that a testator is formally acknowledging?

Answer 18

No

Question 19

What raises a presumption of due execution?

Answer 19

It always exists as long as no evidence it was improper

Attestation clause is good though

Question 20

What do you need to do if a will lacks an attestation clause?

Answer 20

Affidavit of due execution from the witness

Question 21

Does a will need to be dated?

Answer 21

No

Question 22

Does a witness need to have capacity?

Answer 22

No…

Must be capable of understanding and later testifying about an act

Question 23

Can a blind person witness a will?

Answer 23

No

Question 24

What happens if a witness later becomes legally incompetent to testify?

Answer 24

Will is not invalidated on this fact alone

Question 25

Can a minor witness a will?

Answer 25

Yes

Question 26

Can a creditor/spouse/executor be a will witness?

Answer 26

Yes

Question 27

What happens if a beneficiary under a will witnesses that will?

Answer 27

Will is valid, but they lose their entitlement

Question 28

What happens if a witness marries a beneficiary?

Answer 28

Will is still valid

Question 29

What happens if a witness is also a beneficiary but there is more than 2 witnesses?

Answer 29

As long as there are 2 perfect proper witnesses it'll be fine

Question 30

Can a witness be a spouse/civil partner of a beneficiary in the will?

Answer 30

No, unless they got married after signing

Question 31

What is a privileged will?

Answer 31

One exempt from formal requirements

Question 32

What are the 3 classes of privileged will?

Answer 32

Soldiers in active service Mariner or seaman being at sea Members of naval/marine forces in actual military service

Question 33

Can minors who are members of privileged groups make valid wills?

Answer 33

Yes *but cannot dispose of fee simple interest in land

Question 34

Do privileged wills need to be written?

Answer 34

No

Question 35

Are privileged wills still valid after testator ceased to be a member of 1/3 privileged groups?

Answer 35

Yes

Question 36

When will foreign wills be valid under English law?

Answer 36

If valid in foreign jurisdiction in terms of: execution testator was domiciled/habitually resident when making or dying testator was a national

Question 37

What is the effect of a mutual will?

Answer 37

Prevents 2+ people from changing their will after the death of the first person

Question 38

What are the 3 requirements for a valid mutual will?

Answer 38

2+ people make oral or written agreement (must be written for land) (rules of contract) parties agree that survivor should be bound by the arrangement first party dies

Question 39

What type of agreement is a mutual will?

Answer 39

When all living - contractual When 1st dies, constructive trust imposed on the second testator

Question 40

What happens if a mutual will survivor remarries?

Answer 40

Mutual will is revoked but the trust remains intact so that the survivor is still bound