Will Validity Flashcards
What happens if a person fails to make a valid will?
Their estate passes under the intestacy rules
Is there specific wording required for a will to be valid?
No
What is testamentary freedom?
A person has the freedom to leave their property to anyone they choose
What age must a testator be to make a valid will?
18 and over - as per s7 Wills Act 1837
Is there any exemptions to the required age rule for making a valid will?
Yes - military service is an exemption to the age requirement for a valid will
What are the key elements of a valid will?
- Satisfied age requirement
- testamentary capacity
- knowledge and approval
- formal requirements (under s9 WA 1837)
What is testamentary capacity?
A testator must be mentally capable of making a will - this is testamentary capacity
What is the Banks v Goodfellow test for?
Banks v Goodfellow is the common law test for testamentary capacity
Elements of Banks v Goodfellow that must be satisfied?
The testator must:
1. Understand the nature and effect of making the will
2. appreciate the extent of the property that they are disposing of
3. moral claims - must understand who they ought to owe a moral responsibility
4. must not be suffering from a disorder of the mind
Banks v Goodfellow - nature of the act?
The testator must understand that they are signing a document that takes effect on their death and disposes of their property - should be able to understand broad effects of the will
Banks v Goodfellow - extent of property?
Testator should have a general recollection of what they own and appreciate the approximate value of the estate - general understanding, not required to recall every item
Banks v Goodfellow - moral claims?
The testator should be able to appreciate anyone who they may owe a moral responsibility to - but this doesn’t mean they are required to leave their property to their ‘nearest’
Banks v Goodfellow - disorder of the mind?
A testator suffering from insane delusion or if their judgement is generally affected, they do not have testamentary capacity
Time requirements for TC?
The testator must have testamentary capacity at the time the will is executed - with the exception of Parker v Felgate
General rule in Parker v Felgate?
Where the testator lacks capacity when executing the will, the will is still valid if:
1. thy had TC when giving instruction on the will
2. the will was prepared in accordance with those instructions and
3. at the time of signing, the testator understood that they were signing a will for which they had previously given instruction
When does Parker v Felgate apply?
Parker v Felgate can apply where a testator’s TC fluctuates over time, or an unexpected event occurs between them giving instruction and executing the will
Examples of fluctuating capacity?
Dementia - a person with dementia may have lucid days where they may satisfy TC
Depression and other mental health issues should also be taken into account when determining TC
What is the golden rule?
Kenward v Adams 1975 - when taking instruction for a will from an elderly or seriously ill client, a medical practitioner should be instructed to assess capacity and make contemporaneous record of the assessment and conclusion
Is the golden rule legally binding?
No - but it is best practice as it reduces likelihood of disputes over TC in the future
Is not following the golden rule automatically poor practice?
No - the practical complications of complying with the rule have been acknowledged and failing the comply is not automatically deemed poor practice
Is there a presumption of capacity?
Yes - if the will on the face of it appears to be rational and has been duly executed
When is the presumption of capacity rebutted?
When a person has sufficient evidence to raise doubt, the presumption is rebutted and then the validity of the will is challenged
