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Wills > Will Validity A&Q > Flashcards

Will Validity A&Q Flashcards

1
Q

What are the legal requirements to make a valid will?

A
  1. Testamentary Capacity
  2. Knowledge & Approval
  3. Formal Requirements/ s.9 Wills Act 1837
  4. Testator must be aged 18 or over ( exceptions: Married Minors and those in military service)
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2
Q

What is the case for the common law test for testamentary capacity ?

A

Banks v Goodfellow

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3
Q

What is the common law test for testamentary capacity ? and which case was it established in ?

A

Case: Banks v Goodfellow

Test: Testator must:

  1. Understand the nature of the act and its effect
  2. Appreciate the extent of the property of which they are disposing
  3. Understand and appreciate the moral claims to which they ought to give effect and have no disorder of the mind that prevents their sense of right or prevents the exercise of their natural faculties in disposing of property by will.
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4
Q

What does ‘nature of the act’ mean?

A

Must understand that the document takes effect on death & disposes of their property.

Note: Needs to understand board effect of will but not required to understand every detail.

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5
Q

What does ‘extent of property’ mean?

A
  • General recollection of what they own

+

*Appreciate the approximate value of this estates & relative value of assets

Note: Not required to recall every item or know the precise value of each.

General understanding is required NOT perfect memory.

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6
Q

What does ‘moral claims ‘ mean?

A

Testator must be able to appreciate anyone to whom they owe a moral responsibility

BUT

there is no requirement for the testator to leave benefits nearest to them anything.

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7
Q

What does ‘Disordered of the mind’ mean?

A

Suffering from insane delusions, affecting their general judgment or specific disposition in the will

= lacks capacity

Note:

Suffers from insane delusions but those delusions is unconnected with & has no effect on terms of the will = Capacity

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8
Q

When does the testator must have testamentary capacity?

A

At the the time the will is executed

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9
Q

Can a testator who lacks testamentary capacity at the time of execution can still make a valid will?

A

Possible if,

  1. testator has testamentary capacity at the time they gave instructions for the preparation of will
  2. The will was prepared accordance with those instructions and
  3. At the time of execution the testator understood they were signing a will for which they had previously given instructions.

(Parker v Flegate)

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10
Q

When does the exception in Parker v Flegate apply?

A

The exemption may apply where a testator testamentary capacity fluctuates over time (usually as a result of illness)

or

an unexpected event occurs between giving instruction and executing the will which means a person no longer satisfies the test.

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11
Q

What does intermittent capacity mean?

A

Where a testator may satisfy the test in some days for testamentary capacity and other days not.

example: dementia

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12
Q

What is the golden rule?

A

Kenward v Adam

When taking instructions for a will from a client who is elderly or seriously ill a medical practitioner should be instructed to make an assessment of the testators capacity and a contemporaneous record of the assessment and conclusion should be made,

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13
Q

Is the golden rule a legal obligation?

A

No! but it is considered best practice.

*Following the rule does not confirm the testator definitely did have testamentary capacity; the purpose of the rule is to reduce the likelihood of later disputes.

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14
Q

Who has the burden of proof to determine capacity?

A

The propounder of the will (person seeking to admit the will to probate, usually the executor).

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15
Q

Is capacity presumed?

A

Yes, if the will on the face of it appears rational and has been duly executed

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16
Q

What is threshold needed to satisfy the test in Banks v Goodfellow?

A

Low.

  • A person may lack the ability to manage their own affairs and require help with day to day activities and still have testamentary capacity to make a will.
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17
Q

How is presumption of capacity rebutted?

A

Anyone who wishes to challenge the validity of the will of lack of capacity must provide evidence sufficient to raise doubt.

if such evidence is provided presumption is rebutted and the burden of proof reverts to the propounder of the will to demonstrate the testator satisfied the Banks v Goodfellow test.

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18
Q

Does the Statutory Test in the Mental Capacity Act 2005 override Banks v Goodfellow (common law test) ?

A

No, it does not override or modify the specific common law test.

If an application of the two test would produce different outcome the common law test prevails.

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19
Q

Can a solicitor accept instructions for the preparation of a will from a client that lacks testamentary capacity?

A

No, solicitors should not accept their instructions.

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20
Q

Can the court authorise the execution of a will on behalf of an adult who lacks capacity to make one for themselves?

A

It is possible (s.18(1) CA 2005). The court must be persuaded there are grounds to diverge from existing testamentary position and it is in the person’s bets interest to do so.

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21
Q

Does the exception in Parker v Flegate apply to Knowledge and approval element for a valid will?

A

Yes

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22
Q

What does it mean that a testator is required to have specific intention to make the particular will they sign?

A

This means they must know and approve of its contents and understand the choices they have made.

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23
Q

Can a testator satisfy the test for testamentary capacity but lack knowledge and approval?

A

Yes

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24
Q

Is knowledge and approval presumed?

A

Yes, if the testator had testamentary capacity and the will was executed in accordance with the requirements of s.9 Wills Act 1837.

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25
Q

Who has the burden of proof if the element of Knowledge and approval is rebutted?

A

the burden of proof shifts to those seeking to enforce the will to demonstrate it was present.

26
Q

How is knowledge and approval rebutted?

A

if there is evidence which raises doubt

27
Q

Is there presumption of knowledge and approval if the testator is blind or illiterate?

A

No

28
Q

Is there presumption of knowledge and approval if the will is signed by someone on behalf of the testator?

A

No

29
Q

Is there presumption of knowledge and approval if there are suspicious circumstances (e.g. the will was prepared by a key beneficiary or their relative)?

A

No

30
Q

In what circumstance will there be no presumption of knowledge and approval?

A
  • The testator is blind or illiterate (unable to read the will)
  • The will was signed by someone on behalf of the testator.
  • There was suspicious circumstances (e.g the will was prepared by a key beneficiary or their relative)
31
Q

What do you need when submitting the will to probate if there is no presumption of knowledge and approval and the attestation clause does not address this?

A

An affidavit of knowledge and approval would usually be needed when submitting the will to probate

32
Q

What is an attestation clause?

A

Explains the circumstances under which the will was executed, to mitigate the risk of having to prove that it was present at a later date.

33
Q

Why would a will made as a result of undue influence or duress not be valid?

A

The will will not reflect the testators true intention

34
Q

What happens if the whole will was made as a result of undue influence ?

A

the will is invalid

35
Q

What happens if part of the will was made as a result of undue influence?

A

the remainder may be given effect to, provided that the omissions do not ‘upset the whole tenor of what remains, but the court cannot add or substitute words.

36
Q

What is undue influence?

A

Re Edwards:

Undue influence occurs where a testator is:

  • coerced into making a will or including particular terms
  • against their judgement and contrary to their true intention.
  • The testator does not genuinely exercise choice but has surrendered to pressures they were not able to withstand.
37
Q

Does persuasion amount to undue influence?

A

No

Re Edward:

  • Undue influence goes beyond persuasion.
  • it is not unlawful to encourage someone to make a will or persuade them that certain provisions should be included (e.g. by appealing to ‘ties off affection or ‘pity for future destitution’)
  • with persuasion the testator’s judgment is convinced
38
Q

Is undue influence in relation to testamentary dispositions?

A

No presumption, whether undue influence has occurred is a question of fact

39
Q

Who has the burden of proof of proving undue influence?

A

The person making the allegation

40
Q

Does the court consider whether the testator’s will is fair, when considering undue influence?

A

The testator’s will to be fair is irrelevant

41
Q

What does the court consider when assessing if the undue influence has occurred in a will?

A

Whether, in executing the will, the testator acted as a free agent

42
Q

Are the physical and mental strength of the testator relevant when determining, undue influence?

A

Yes, the physical and mental strength of the testator are relevant when determining how much pressure would be necessary to overbear the will.

  • A weak of ill testator may be more susceptible and for the sake of a quiet life may be induced to do anything.
43
Q

What does S.9 Wills Act 1837 State?

A

No will shall be valid unless—

(a) it is in writing, and signed by the testator, or by some other person in his presence and by his direction; and

(b) it appears that the testator intended by his signature to give effect to the will; and

(c) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and

(d) each witness either

   (i) attests and signs the 
     will; or

   (ii) acknowledges his 
     signature,

in the presence of the testator (but not necessarily in the presence of any other witness), but no form of attestation shall be necessary.

44
Q

What constitutes as in writing in s.9 (a) WA?

A

Includes handwritten and typed/printed text in any language

45
Q

What constitutes as signed in s.9 (a) WA?

A

Any mark may constitute a ‘signature’ if the testator intends it to be, but it is preferable for a testator to use their normal signature to avoid doubt

46
Q

What constitutes by some other person in his presence and by his direction in s.9 (a) WA?

A

This could apply e.g. if a testator is physically unable to sign themselves and authorises another person to sign on their behalf.

47
Q

What constitutes as intended by his signature to give effect to the will in s.9 (b) WA?

A

Where the signature is at the end of a will it usually indicates the necessary intention. signatures at the beginning or in the middle of the will can be problematic.

48
Q

What constitutes as the signature is made or acknowledged by the testator in s.9 (c) WA?

A

A testator either signs in person or acknowledges the signature of the person who signed on their behalf.

49
Q

What constitutes un the presence of two or more witnesses present at the same time in s.9 (c) WA?

A

Two is the minimum - there is no maximum.

Witness 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 act.

The full name, addresses and occupation of each witness should be noted in case the will is challenged at a later date and they are required to give evidence (in an affidavit) of what happened at execution or the testator’s mental state.

50
Q

What constitutes as in presence of the testator (but not necessarily in the presence of any other witness) s.9 (d) (ii) WA?

A

Both witnesses must sign the will in front of the testator but it is not necessary for each witness to also sign in front of each other

51
Q

Is there a legal obligation to include an attestation clause?

A

No there is no legal obligation to include an attestation clause nor is any specific form of attestation required.

52
Q

What is a presumption of due execution?

A

A properly drafted attestation clauses that raises a presumption that the will was executed in accordance with the requirements of s.9 WA.

53
Q

When should the attestation clause be amended?

A

In special circumstances (e.g will is signed on behalf of the testator, or the testator is blind or illiterate

54
Q

Why should the attestation clause be amended to reflect special circumstances?

A

To provide evidence of the requisite knowledge and approval.

55
Q

What happens to a solicitor if they fail to ensure the correct execution process is followed?

A

It may constitute as negligence.

56
Q

What does s.15 WA state?

A

Any gifts to an attesting witness (or their spouse ) are void.

57
Q

What will happen if beneficiary or a testator’s spouse at the time of the execution act as a witness?

A

The beneficiary cannot inherit under the will.

58
Q

What is a beneficiary ?

A

Anyone who gains any benefit under the will.

59
Q

Will the will be valid if beneficiary or a testator’s spouse at the time of the execution act as a witness?

A

Yes!

60
Q

What will happen if a professional executor (who is entitled to charge for their services) witnesses a will ?

A

S.15 will not apply to the remuneration the professional executor will receive for acting in his role (S.28 (4)(a) Trustee Act)

61
Q

Does s.15 WA have effect on the appointment of a witness as an executor?

A

No

Wills (7 decks)

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