Will Validity

Question 1

What are the requirements for a valid will?

Answer 1

1. Testamentary Capacity
2. Knowledge and approval
3. s.9 Wills Act 1837 compliance

Question 2

What is testamentary capacity?

Answer 2

The testator must understand:
* nature and effect of a will (i.e document to dispose of property on death);
* the general extent and value of the property they have;
* their moral obligation to make certain distributions

at the time the will is executed.

Question 3

When is capacity presumed?

Answer 3

When the will is rational on the face of it and complies with the requirements of s.9 WA 1837.

Question 4

Who bears the burden of proving capacity?

Answer 4

The personal representatives of the deceased.

Question 5

Can a will be valid even where the testator lacked capacity at the time of execution?

Answer 5

Yes, where the will is made in accordance with instructions given by the testator at a time where they did have capacity + the testator understands that they are signing a will for which they previously gave instructions (Parker v Feldgate).

Question 6

What is knowledge and approval?

Answer 6

1. General intention: intention to make a will to dispose of property on death; and
2. Specific intention: intention to make the specific will that they sign at time of execution.

Question 7

Is there a presumption of knowledge and approval? If so, when does it apply?

Answer 7

Yes. Knowledge and approval is presumed where:
1. Testator has capacity;
2. Will seems rational on the face of it;
3. Will complies with the s.9 Formalities.

The presumption does not apply where:
(a) testator is blind / illiterate;
(b) will signed by someone else on behalf of testator;
(c) suspicious circumstances

If an attestation clause does not address the above, then an affidavit of knowledge and approval may have to be subitted to probate.

Question 8

What is duress / undue influence in the context of wills & what is its effect?

Answer 8

It is more than mere influence but pressure that the testator could not withstand such that they did not make a genuine choice. Whole or part of will may be invalid as a result.

Question 9

What are the requirements contained in s.9 of the Wills Act 1837?

Answer 9

Will must be:
* in writing;
* signed by the testator
* signed by testator in presence of 2 witnesses (need not be simultaneous)
* Signed / acknolwedgement of signing by the 2 witnesses.

Question 10

Who can witness a will?

Answer 10

• Witnesses need not be simultaneous
• Must not be minor, blind, drunk or illiterate,
• Need not know the terms of the will or that it is a will
• Full names, addresses and occupations provided
• Should attest + sign will or acknowledge their signature in the presence of the testator.
• A beneficiary or their spouse must not or the gift will fail (s.15 WA 1837); however, fine if witnessed by 2 more people or duly executed codicil later.

Question 11

What is an attestation clause and when should it be used?

Answer 11

Not a requirement for a valid will but does raise the presumption that the requirements of s.9 of the Wills Act 1837 have been satisfied.

It describes the circumstances in which the will was signed and should include any special circumstances (e.g arrangements made where testator is blind / illiterate / cannot sign).

If inadequate then must submit an affidavit of due execution to probate.