will validity Flashcards
What are the requirements for making a valid will?
A testator must be aged 18 or over, have testamentary capacity, knowledge and approval, and satisfy the formal requirements of s9 Wills Act.
What is testamentary capacity?
A testator must be mentally capable of making a will at the time the will is executed.
What is the common law test for testamentary capacity?
A testator must understand the nature of the act, appreciate the extent of their property, understand moral claims, and have no disorder of the mind affecting their judgment.
What does ‘Nature of the Act’ mean?
A testator must understand they are signing a document that takes effect on death and disposes of their property.
What does ‘Extent of Property’ mean?
A testator should have a general recollection of their property and appreciate its approximate value.
What does ‘Moral claims’ mean?
A testator should appreciate anyone to whom they owe a moral responsibility, but is not required to leave them anything.
What does ‘Disorder of the mind’ mean?
A testator with insane delusions affecting their judgment lacks testamentary capacity unless the delusion is unconnected with the will.
When must the testator have testamentary capacity?
At the time the will is executed.
What is the exception to the rule that ‘testator must have testamentary capacity at the time the will is executed.’?
A testator can still make a valid will if they had capacity when giving instructions, the will was prepared accordingly, and they understood they were signing it.
What is the golden rule for taking instructions from a client who is elderly or seriously ill?
A medical practitioner should assess the testator’s capacity and make a contemporaneous record of the assessment.
Is the golden rule a legal obligation?
No it is not.
Failure to arrange for medical assessment does not automatically invalidate the Will.
When is testamentary capacity presumed?
Capacity is presumed if the will appears rational and has been duly executed.
If evidence raises doubt on capacity, who bears the burden of proof?
The burden of proof lies with the propounder of the will.
Which test prevails if the common law test and statutory test produce different outcomes?
The common law test prevails.
Can a court authorize the execution of a will for an adult who lacks capacity?
Yes, if it is in the person’s best interests.
What is the rule regarding knowledge and approval?
A testator must intend to make a testamentary document and understand its contents at the time of execution.
When is knowledge and approval presumed?
If the testator had testamentary capacity and the will was executed according to s 9 WA.
When is there no presumption of knowledge and approval?
When the testator is blind or illiterate, the will is signed on their behalf, or there are suspicious circumstances.
What is needed when submitting the will to probate if there is no presumption of knowledge and approval?
An affidavit of knowledge and approval is usually needed.
How should the attestation clause be drafted for a client unable to read?
It should reflect the steps taken to ensure the testator understood the document.
What is undue influence?
Undue influence occurs when a testator is coerced into making a will against their true intention.
What happens if the will is made as a result of undue influence?
If the whole will is a result of undue influence, it is invalid; if part, that part is invalid.
Who bears the burden of proving undue influence?
The burden lies with the person making the allegation.
What are the formal requirements of a valid will?
It must be in writing, signed by the testator, intended to give effect to the will, and witnessed by two or more witnesses.
