Will Validity: Knowledge & Approval Flashcards
What must a testator understand to satisfy the requirement of knowledge and approval?
A) The full legal effect of every clause in the will
B) The general nature and effect of the will
C) The tax implications of the will
D) The personal wishes of the beneficiaries
B) The general nature and effect of the will
Explanation:
A testator must understand that the document is their will and generally what it does. They do not need to understand every legal clause in detail, nor are they required to know tax consequences or the personal wishes of their beneficiaries.
In which of the following situations is there NO presumption of knowledge and approval?
A) The testator has testamentary capacity and signed the will in front of witnesses
B) The testator had the will drafted by a solicitor and read it before signing
C) The will was signed by someone else on behalf of the testator
D) The will makes equal provision for all family members
C) The will was signed by someone else on behalf of the testator
Explanation:
If a testator is unable to sign and someone signs on their behalf, there is no automatic presumption that the testator had knowledge and approval of the will. Additional evidence may be required, such as an affidavit.
What is the significance of an affidavit of knowledge and approval?
A) It proves the will was signed voluntarily
B) It is required for every will to be valid
C) It confirms that the testator was aware of and understood the contents of the will
D) It is used to dispute a will in court
C) It confirms that the testator was aware of and understood the contents of the will
Explanation:
An affidavit of knowledge and approval may be required when there are doubts about whether the testator understood the will, particularly in cases where they were blind, illiterate, or there were suspicious circumstances.
A testator is 90 years old and recently suffered a mild stroke. He tells his solicitor that he wants to make a will leaving everything to his neighbour, who has been helping him around the house. His children are surprised by this decision. What should the solicitor do to ensure the will is valid?
A) Proceed with drafting the will as the testator has given clear instructions
B) Follow the “Golden Rule” and seek a medical assessment of the testator’s capacity
C) Ignore the request as the testator’s decision seems suspicious
D) Draft the will but refuse to act as a witness
B) Follow the “Golden Rule” and seek a medical assessment of the testator’s capacity
Explanation:
The “Golden Rule” suggests obtaining a medical opinion when drafting a will for elderly or vulnerable clients to confirm they have capacity and understand the will. This helps reduce the risk of future disputes.
A blind testator wishes to make a new will. The solicitor drafts the will and reads it aloud to the testator, who confirms they understand its contents before signing. What additional step should the solicitor take to ensure validity?
A) Include an attestation clause stating that the will was read to the testator
B) Ask the testator to record a video confirming their intentions
C) Require the testator to sign in front of a judge
D) Obtain written consent from the testator’s family
A) Include an attestation clause stating that the will was read to the testator
Explanation:
For a blind testator, an attestation clause should confirm that the will was read aloud and understood before signing. This helps establish knowledge and approval and prevents future disputes
A testator had dementia but gave instructions for a will during a lucid period. By the time the will was ready for signing, their condition had worsened, and they could not fully recall their instructions. Is the will valid?
A) No, because the testator must have full capacity at the time of signing
B) No, because the testator was not aware of their previous instructions
C) Yes, under the rule in Parker v Felgate, if they understood they were signing the will they had instructed
D) Yes, because dementia does not automatically invalidate a will
C) Yes, under the rule in Parker v Felgate, if they understood they were signing the will they had instructed
Explanation:
Parker v Felgate allows a will to be valid if the testator had full capacity when giving instructions and later understands they are signing the will they previously instructed, even if they no longer recall all the details.
A testator is in hospital and heavily reliant on a carer who has taken them to a solicitor to make a will. The will leaves the entire estate to the carer and excludes family members. What is the most appropriate legal concern in this situation?
A) The testator has testamentary freedom and can leave their estate as they wish
B) A claim of undue influence may be raised, as the carer appears to benefit in suspicious circumstances
C) The testator’s family must be notified before the will is executed
D) The will is invalid because it does not include family members
B) A claim of undue influence may be raised, as the carer appears to benefit in suspicious circumstances
Explanation:
If a beneficiary, such as a carer, played a significant role in arranging the will, it raises suspicion of undue influence. The burden would be on those challenging the will to prove coercion or manipulation.
When would a testator’s knowledge and approval of a will NOT be presumed?
A) When the will has been signed in the presence of two witnesses.
B) When the will appears rational and was properly executed.
C) When the will was prepared by a key beneficiary and there are suspicious circumstances.
D) When the testator dictated the will to a solicitor and later signed it.
C) When the will was prepared by a key beneficiary and there are suspicious circumstances.
Explanation:
The presumption of knowledge and approval does not apply in cases where there are suspicious circumstances, such as a key beneficiary preparing the will. In such cases, the person seeking to enforce the will must prove the testator knew and approved its contents.
A testator is blind but signs a will that has been read aloud to them. What additional step is necessary to avoid challenges based on lack of knowledge and approval?
A) The testator must sign in the presence of a solicitor.
B) The attestation clause should state that the will was read aloud and approved by the testator.
C) A medical professional must certify that the testator had capacity.
D) The testator’s family must witness the signing of the will.
B) The attestation clause should state that the will was read aloud and approved by the testator.
Explanation:
When a testator is blind or unable to read, the attestation clause should specify that the will was read aloud and that the testator confirmed their understanding and approval. This helps prevent later challenges based on knowledge and approval.
A testator made a will while under significant pressure from a close family member. Although they were persuaded, they ultimately agreed to the will’s terms. What is the likely legal outcome?
A) The will is invalid due to undue influence.
B) The will is valid unless the testator was coerced beyond persuasion.
C) The will is automatically invalid because persuasion was involved.
D) The will is valid only if the testator received independent legal advice.
B) The will is valid unless the testator was coerced beyond persuasion.
Explanation:
Persuasion alone does not amount to undue influence. To invalidate a will, there must be evidence of coercion, meaning the testator was forced into making decisions they did not truly wish to make. Encouragement or influence is not enough to invalidate a will.
