Will validity, drafting, amendment, IPFDA Flashcards
What are the requirements of a valid will?
Testamentary capacity + Knowledge and Approval + Formal Requirements (s9 WA 1937).
What is the common law test for testamentary capacity? (from Banks v Goodfellow)
Testator must understand the nature of the act and its effects; Appreciate the extent of the property or which they are disposing, understand and appreciate the moral claims to which they ought to give effect; have no disorder of the mind that perverts their sense of right or prevents the exercise of their natural faculties in disposing of property by the will.
What is the timing requirement for testamentary capacity? Are there any exceptions?
They must have testamentary capacity AT THE TIME THE WILL IS EXECUTED.
Limited exception = they had testamentary capacity at the time they gave instructions for the preparation of the will; 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.
What is the ‘golden rule’ when taking instructions from an elderly or seriously ill client?
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. Not legal obligation but considered best practice.
Is there a presumption of capacity?
Yes, if the will on the face of it appears rational and has been duly executed.
What if you want to challenge the presumption of capacity?
Provide sufficient evidence to raise doubt. If such evidence is provided, the presumption is rebutted and the proof reverts to the propounder of the will to demonstrate the testator satisfied the Banks v Goodfellow test. Note the threshold for Banks v Goodfellow is quite low.
What will happen if a client lacks testamentary capacity?
Cannot make a valid will and a solicitor should not accept instructions. Court can authorise the execution on a will on behalf - they must be persuaded there are grounds to diverge from the existing testamentary position and it is in the persons’s best interest to do so.
In what circumstances Is there no presumption of knowledge and approval?
The testator is blind or illiterate, the will was signed by someone on behalf of the testator, or there are suspicious circumstances.
If the attestation clause does not address this, an affidavit of knowledge and approval would usually be needed when submitting the will to probate.
When does undue influence occur in will drafting?
Testator is coerced into making a will or including particular terms against their judgement and contrary to their true intention - doesn’t genuinely exercise choice.
Goes beyond persuasion.
Physical and mental strength of the testator are taken into consideration.
What are the formal requirements under s 9 WA 1937?
- In writing and signed by the testator or by some other person in his presence and by his direction; and
- It appears that the testator intended by his signature to give effect to the will; and
-The signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and - each witness either attests and signes the will or acknowledges his signature in the presence of the testator (but not necessarily the other witnesses).
Is an attestation clause a legal requirement?
No, but it raises the presumption that the will was drafted in accordance with the requirements of s9.
Proof of property execution is required in its absence - e.g. an affidavit of due execution.
Can a beneficiary act as a witness?
No. Will remains valid but beneficiary cannot inherit and solicitor may be negligent if they don’t provide advice about this.
(not counting professional executor who gets salary for their role).
If there are at least two other witnesses not caught by s 15 WA, or will is subsequently confirmed by a properly executed codicil, the effect of s 15 can be disregarded.
How can a testator amend a will?
Make manuscript amendments to their original will; make a codicil to an existing will; revoke their existing will.
What is the purpose and contents of a commencement clause?
Identify the testator name and address maybe occupation, refer to other names and any alias, can include date.
What is the purpose and contents of a revocation clause?
Can be included in commencement or separate - ensures previous wills and codicils are revoked. Should be included as a matter of good drafting.
What is the purpose and content of burial and funeral wishes clause?
Direct what will happen to their body after death - not legally binding on the PRs but will be followed where possible.
What is an executor?
A PR appointed by will.
What is an administrator?
PR appointed by the NCPR (will didn’t appoint an executor).
Min/max number of executors?
Minimum one, best to appoint at least 2. Max four can apply to the grant of representation.
What is a spouse is appointed executor and then they divorce?
Appointment becomes ineffective.
How do you appoint a law firm partnership as executor/trustee?
You appoint all of the partners at the date of death. (‘a’ or ‘any one’ partner is void for uncertainty). Should say only one/ two can act. Can say a specific partner preference, but avoid a personal appointment.
n.b. LLP can be appointed as itself.
Can professional executors charge for their time?
Yah - should include an express charging power as part of the appointment clause. Only professional executors can charge s 29 TA 2000.
How does an appointment of guardians clause work?
Testator with parental responsibility may appoint a legal guardian for infant children s 5 Children Act.
Obtain consent from proposed guardian - they are not required to accept the appointment.
What are specific gifts?
Particular item owned by the deceased at the date of death.
