Will Validity

Question 1

What happens to the assets of the estate if there is a valid Will?

Answer 1

The assets capable of passing under the Will are distributed in accordance with the terms of the Will

Question 2

What happens if the Will fails to dispose of all of the assets of the deceased?

Answer 2

Partial intestacy

Question 3

What happens if there is no Will?

Answer 3

Intestacy

Question 4

Are specific words or formats to be used when creating a Will?

Answer 4

No

Question 5

Do testator’s have to leave property to certain people?

Answer 5

No they have testamentary freedom to leave property to whomever they choose

Question 6

What age do you have to be to make a valid Will?

Answer 6

18 or over (unless in military service)

Question 7

What three legal requirements must be present?

Answer 7

• testamentary capacity
• knowledge and approval
• formal requirements s 9 Will Act 1837

Question 8

What is testamentary capacity?

Answer 8

A testator must be mentally capable of making a Will

Question 9

What is the test for testamentary capacity in Banks v Goodfellow?

Answer 9

Testator must:

• understand the nature of the act and its effects
• appreciate the extent of the property of which they are disposing
• understand and appreciate the moral claims to which they ought to give effect, and have no disorder of the mind that perverts their sense of right or prevents exercise of their natural faculties in disposing of property by Will

Question 10

To what degree must the testator understand the nature of the act for testamentary capacity under Banks v Goodfellows?

Answer 10

• testator must understand that they are signing a document that takes effect on death and disposes of their property
• testator should be able to understand the broad effects of the will but is not required to understand every detail

Question 11

To what degree must the testator understand the ‘extent of property’ for testamentary capacity under Banks v Goodfellows?

Answer 11

• T should have general recollection of what they own and appreciate approximate value of their estate and relative value of its assets
• T is not required to recall every item or know the precise value of each
• test of general understanding rather than perfect memory

Question 12

To what degree must the testator understand ‘moral claims’ for testamentary capacity under Banks v Goodfellows?

Answer 12

• T should be able to appreciate when deciding who to benefit/extent anyone to whom they owe a moral responsibility to
• moral responsibility likely to be owed to those ‘nearest to them in kindred and who in life have been objects of their affection’

Question 13

What would amount to a disorder of the mind that affects testamentary capacity?

Answer 13

• a testator suffering from insane delusions, affecting their judgement generally or in relation to specific dispositions in the Will, lacks testamentary capacity
• a testator may be suffering from an insane delusion and still have testamentary capacity if the delusion is unconnected with and has no effect on the terms of the will

Question 14

When must a testator have testamentary capacity?

Answer 14

At the time the Will is executed

Question 15

What is the exception to the rule that a testator must have testamentary capacity at the time the Will is executed in Parker v Felgate?

Answer 15

Can still make a valid will provide T

• had testamentary capacity at the time they gave instructions for the preparation of the Will and
• the Will was prepared in accordance with those instructions and
• at the time of execution the testator understood they were signing a will for which they had previously given instructions

Question 16

Is capacity something you either always have or have not?

Answer 16

No capacity can fluctuate

• testator can be temporarily incapacitated

Question 17

What is best practice, ‘the golden rule’, where there may be a question in relation to testamentary capacity?

Answer 17

Medical practitioner should be instructed to make an assessment of the testator’s capacity and a contemporaneous record of that assessment and conclusion should be made

Question 18

Will following the golden rule in relation to capacity mean the testator beyond doubt had capacity at the time in law?

Answer 18

No - but it will be useful evidence should a dispute arise later

Question 19

Who does the burden of proof relating to capacity lie with?

Answer 19

The propounder of the Will (person seeking to admit the Will to probate)

Question 20

What presumption is there in relation to capacity?

Answer 20

If the Will on the face of it appears rational and has been duly executed, then presumption that T had capacity

Question 21

What must a person do who wishes to challenge the validity of a Will on grounds of capacity?

Answer 21

They must provide sufficient evidence to rebut presumption of capacity

Question 22

What is the effect of a challenger to a Will providing sufficient evidence to rebut presumption of capacity?

Answer 22

Then burden of proof reverts back to propounder of Will to demonstrate T had capacity

Question 23

Is the threshold to the test in Banks v Goodfellow’s low or high?

Answer 23

Low - T may lack ability to manage their own affairs and require help with day-to-day activities and still have testamentary capacity to make a Will

Question 24

What is the relationship between the testamentary capacity test in Banks v Goodfellows and the statutory test in the Mental Capacity Act 2005?

Answer 24

• statutory test does not override common law test
• they are meant to complement each other
• if application of the two tests produces different results then the common law test is to prevail

Question 25

When is it possible for the court to authorise the execution of a Will on behalf of an adult who lacks capacity to make one for themselves?

Answer 25

When the court is persuaded that there are grounds to diverge from the existing testamentary position and that it is in the person’s best interests to do so

Question 26

What intention (knowledge and approval) must a testator have when making a Will?

Answer 26

• general intention as to making a testamentary document which disposes of their property and should have effect following their death
• specific intention to make the particular Will they sign ie they know and approve of its contents and understand the choices they have made

Question 27

Is it possible to have testamentary capacity but fail to have the requisite knowledge and approval when making a Will?

Answer 27

Yes

Question 28

How will a T show their knowledge and approval?

Answer 28

By signing it - shows they intend to give effect to its terms

Question 29

When must knowledge and approval be present?

Answer 29

At the time of execution

Question 30

What presumption is there in relation to knowledge and approval?

Answer 30

Knowledge and approval are presumed if the testator had testamentary capacity and the Will was executed in accordance with the requirements of s 9 WA

Question 31

What happens if evidence is raised that rebuts the presumption of knowledge and approval?

Answer 31

The burden of proof shifts to those seeking to enforce the Will to demonstrate that it was present

Question 32

When is there no presumption of knowledge and approval?

Answer 32

• the testator was blind or illiterate
• the Will was signed by someone on behalf of the testator
• there are suspicious circumstances

Question 33

Where the presumption of knowledge does not apply and there is no attestation addressing the issue, what will be required to prove knowledge and approval?

Answer 33

An affidavit

Question 34

What will be the effect of a Will made as a result of undue influence and duress?

Answer 34

Will will not be valid as it does not reflect the testator’s true intention

Question 35

What happens if only part of the Will was a result of undue influence?

Answer 35

The remainder may be given effect to provided that the omission of part that was a result of undue influence does not ‘upset the whole tenor of what remains’ but the court cannot add or substitute words

Question 36

What will amount to undue influence?

Answer 36

• must go beyond persuasion
• must be pressure that the testator was not able to withstand

Question 37

Who has the burden of proving undue influence?

Answer 37

The person making the allegation

Question 38

What must be proven for successful case of undue influence?

Answer 38

Must be shown that the facts are inconsistent with any other hypothesis

Question 39

What facts about the testator will the court bear in mind in deciding undue influence cases?

Answer 39

Their physical and mental strength

Question 40

What formal requirements under s 9 Will Act are there?

Answer 40

• Will must be in writing and signed by testator (or someone else on his behalf)
• T’s signature must be made or acknowledged in the presence of two adult witnesses with capacity
• the witnesses must each sign the Will in the presence of T but not necessarily in the presence of each other

Question 41

What must the testator do to show they intend to give effect to the Will?

Answer 41

Sign at the end of the document

Question 42

How many witnesses can you have?

Answer 42

• minimum of two
• no maximum

Question 43

What other requirements are there in relation to witnesses aside there being two?

Answer 43

• they must be physically and mentally present but do not need to know a Will is being signed or its terms
• a minor, someone who is blind, drunk or of unsound mind should not be a witness

Question 44

What is an attestation clause?

Answer 44

It describes the circumstances under which the Will was executed

Question 45

Is an attestation clause legally required?

Answer 45

Not legally required

Question 46

What is the benefit of an attestation clause?

Answer 46

It raises the benefit of a presumption that the Will was executed in accordance with the requirements of s 9 WA

Question 47

What should the attestation clause do if the Will was executed in special circumstances eg T was blind?

Answer 47

Attestation clause should be drafted to reflect these special circumstances and provide evidence of the requisite knowledge and approval

Question 48

What happens if an attesting witness is also a beneficiary (or their spouse is)?

Answer 48

Any such legacy to them under the Will is void

Question 49

What happens if an attesting witness is a professional executor?

Answer 49

They will still be able to receive remuneration for their services

Question 50

What happens if an attesting witness is also a beneficiary and an executor?

Answer 50

Appointment of executor still valid

Legacy is void

Question 51

What happens if an attesting witness is also a beneficiary and there are two other witnesses who are not beneficiaries?

Answer 51

The beneficiary’s legacy will still be valid