Will Validity MCQ Flashcards
If you are acting for a client who lacks testamentary capacity, should you take their instructions for preparing a will?
A. Yes
B. No
B. No
If a client lacks capacity they cannot make a valid will and a solicitor should not accept their instructions to prepare one.
A client gives you instructions to prepare a new will which leaves the whole of their estate to their civil partner. You consider the test in Banks v Goodfellow and are certain that your client has testamentary capacity.
Five days after giving the instructions the client was involved in a car accident which left them disorientated and confused. You visit the client in hospital and bring with you the will you have prepared. The client remembers meeting you to give instructions for a will and is happy to sign the will you have prepared in accordance with those instructions. However, when talking with the client you have some doubt whether they still satisfy the test for capacity and their memory of your meeting and the points discussed seems a little unclear.
Which one of the following is correct?
A. It is possible for the client to make a valid will in the hospital even if they lack capacity when it is executed because they had capacity when giving instructions and the terms of the will are rational.
B. It is possible for the client to make a valid will in the hospital even if they lack capacity when it is executed because they had capacity when giving instructions and understand they are now signing a will for which they had previously given instruction.
C. The client could make a valid will in the hospital provided a doctor acts as a witness.
D. The client must have capacity at the time of execution for the will to be valid.
E. The client could execute a valid will in the hospital but only if they satisfy the test for capacity in the Mental Capacity Act 2005.
B. It is possible for the client to make a valid will in the hospital even if they lack capacity when it is executed because they had capacity when giving instructions and understand they are now signing a will for which they had previously given instruction.
The rule in Parker v Felgate is an exception to the requirement that the client has capacity at point of execution. Provided they had capacity when giving instructions, the will was prepared in accordance with those instructions and the testator understands they are signing a will for which they had previously given instructions they don’t need to satisfy the Banks v Goodfellow test at the point of signing.
The other answers were incorrect because:
- The test in the Mental Capacity Act 2005 is not the test used for testamentary capacity
- There is no requirement for a doctor to witness a will
- Whether or not the will is rational is not a factor to take into account when applying the rule in Parker v Felgate
You have been instructed by a client whose elderly mother is in a nursing home and suffering from dementia. Your client’s mother currently lacks capacity which she will not regain.
Your client’s mother is a widow. Her current will divides her estate equally between her three children, including your client. The will was duly executed by the client’s mother and witnessed by two of her friends.
Your client is concerned that their mother may have lacked capacity when she made her will six months ago as your client was expecting to receive more than a 1/3 share of the estate.
Which one of the following most accurately describes the legal position should your client wish to challenge the validity of the will?
A. There is always a presumption in favour of capacity and therefore your client must prove their mother did not have capacity when she made her will.
B. If your client’s mother did not have capacity at the time she made the will it is invalid. As she will not regain capacity it is no longer possible for her to make a new will.
C. There will be a presumption that your client’s mother had capacity when she made her will unless your client has evidence to suggest otherwise.
D. There is a presumption that your client’s mother lacked capacity when she made her will because she is elderly (unless the ‘golden rule’ was followed).
E. There is a presumption that your client’s mother lacked capacity when she made her will because of her current medical condition.
C. There will be a presumption that your client’s mother had capacity when she made her will unless your client has evidence to suggest otherwise.
Where the will on the face of it does not raise any concerns, because its terms are rational and it has been properly signed, then capacity is presumed. However, if evidence that raises doubt is provided however the 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.
The other options were incorrect because:
- If a testator lacks capacity it may be possible for a statutory will to be made for them
- The age of the testator, and whether or not the golden-rule was followed, do not affect the general rule regarding presumption in favour of capacity where the will is rational and has been properly executed
- It is not correct that the person challenging a will must prove the lack of capacity
- The current medical condition is not a determining factor- the testator’s health at the time of execution is
You are reviewing two wills.
When the first will was signed the testator told the witnesses “I’ve not bothered to read anything the lawyer has sent me – it’s all a bit complicated to be honest, but I’m sure they’ve done the right thing”.
When the second will was executed the testator had hurt their hand and arranged for someone else to sign the will on their behalf.
Both wills were drafted by solicitors and duly executed with a standard form attestation clause. Both testators had testamentary capacity.
Assuming there is no other relevant information, which one of the following is correct with regards knowledge and approval of the wills?
A. The first will is invalid due to lack of knowledge and approval. The second will is invalid because the attestation clause was not updated to make it clear the testator did not sign the will themselves.
B. The first will is invalid due to lack of knowledge and approval. Affidavit evidence that knowledge and approval were present at execution is required in respect of the second will.
C. Affidavit evidence that knowledge and approval were present at execution is required in respect of both wills.
D. Knowledge and approval will be presumed in respect of both wills because the testator had capacity when the wills were made.
E. Knowledge and approval will be presumed in respect of both wills because the testator had capacity when the wills were made and they were duly executed.
B. The first will is invalid due to lack of knowledge and approval. Affidavit evidence that knowledge and approval were present at execution is required in respect of the second will.
A testator must intend to make the particular will they sign. This means they should know and approve of its contents and the contents of the will must have been read and understood. The first testator has not read or understood his will so did not have knowledge of its contents when it was signed.
The second will was signed by someone else on behalf of the testator. This means knowledge and approval will not be presumed. As the attestation clause was not amended to reflect this, affidavit evidence to prove knowledge and approval will be required. The other options were incorrect because: - facts suggest the first testator lacked knowledge and approval – so affidavit evidence will not help. - although testamentary capacity and due execution usually lead to a presumption of knowledge and approval, this does not apply where someone signs on behalf of a testator - an inadequate attestation clause does not render a will invalid
A will written in English contains the following attestation clause:
“Signed by the above named Testator in our joint presence and then by us in his after this document had been read to the Testator when the testator seemed thoroughly to understand and approve the contents”
In which circumstances should this form of attestation be used?
A. Where suspicious circumstances surround the execution of the will.
B. Where a testator is blind, illiterate or does not understand English.
C. Where a testator is blind.
D. Where a testator is blind or illiterate.
E. Where a testator is blind or is not signing the will on their own behalf.
D. Where a testator is blind or illiterate.
A blind or illiterate testator cannot read the will and therefore to raise a presumption that knowledge and approval was present it needs to be clear that the will was read out loud and that the testator understood what was said before it was signed. The other options were incorrect because: - A testator who does not understand English is not aided by the will being read out loud unless it is clear it was read in the testator’s preferred language by someone who was able to translate it - A testator who does not sign the will himself doesn’t necessarily need it to be read out loud, but the attestation clause should refer to the fact that he did not sign - Where there are suspicious circumstances this form of attestation is not helpful
A testator died recently. Three weeks before he died, the testator made a new will leaving all of his assets, apart from a small cash gift to a local charity, to the children of his current marriage. The testator’s previous will made provision for his child from an earlier marriage, but this child does not benefit under the current will.
You have been instructed by the child of the testator from the earlier marriage. Your client spoke to the testator a few days before he died. The testator explained that his wife “kept on at him all the time” to make a will in favour of their children only, and to keep her quiet he signed a new will that reflected what she wanted.
The testator had capacity and knew and approved of the terms of the new will when it was duly executed.
Which of the following is correct regarding a claim of undue influence?
A. A claim of undue influence is not possible because the testator had both capacity and knowledge and approval when they executed their will.
B. A claim of undue influence will succeed if your client provides evidence that the testator’s spouse persuaded the testator to make the will which excluded your client.
C. A claim of undue influence is not possible because the testator’s spouse does not benefit under the new will.
D. A claim of undue influence will succeed if your client provides evidence that when the testator signed the will his true intention was not reflected in its terms.
E. If a claim of undue influence succeeds the will would be invalid and the local charity cannot receive the cash gift.
D. A claim of undue influence will succeed if your client provides evidence that when the testator signed the will his true intention was not reflected in its terms.
Even where a testator has capacity and knowledge and approval, if the will was made as a result of undue influence it will not be valid because it does not reflect the testator’s true intention. The other options were incorrect because: - it is not unlawful to encourage someone to make a will or persuade them that certain provisions should be included. Undue influence occurs where a testator is coerced into making a will that is contrary to their true intention. - It is not a requirement that the person committing the wrong unduly influences the testator to make direct provision for themselves - A testator can know and approve of their will but still be acting as a result of undue influence - Where a testator has been unduly influenced in respect of a particular gift (here the gift to the children) it is still possible for the remainder of the will to take effect
Consider the following attestation clause:
“Signed by the above named [TESTATOR] in our joint presence“
Which one of the following most accurately summarises the effect of a will containing this clause?
A. If a will included this attestation clause proof of the testator’s intention would be required when seeking to admit the will to probate following the testator’s death.
B. If a will included this attestation clause, proof of due execution would be required when seeking to admit the will to probate following the testator’s death.
C. If a will included this attestation clause the will would not be valid.
D. If a will included this attestation clause it would be incomplete because there is no reference to the will having been read out loud to the testator.
E. If a will included this attestation clause there would be a presumption that the will was executed in accordance with the requirements of s 9 Wills Act 1837.
B. If a will included this attestation clause, proof of due execution would be required when seeking to admit the will to probate following the testator’s death.
A properly drafted attestation clause raises a presumption that the will was executed in accordance with the requirements of s 9 WA (a presumption of due execution). Therefore it should refer to the testator and the witnesses signing in the presence of each other. This clause makes no reference to the witnesses signing in the presence of the testator so is incomplete. However, there is no legal obligation to include an attestation clause, nor is any specific form of attestation required, so a poorly drafted clause does not invalidate the will. However, proof of due execution is required, usually an affidavit of due execution sworn by the witnesses.
The other answers were incorrect because:
- A missing or poorly drafted attestation clause does not invalidate the will
- A properly drafted attestation clause does not give rise to a presumption of the testator’s intent
- The attestation clause would only mention the will have having been read out loud to a testator where the testator unable to read the will for himself
Your client arranges to sign their will at home and invites a married couple who live next door to act as witnesses. The three of them gather in the same room and the testator produces the will ready for signing. One of the witnesses leaves the room to take a phone call. Before they return, the testator signs the will in the presence of the other witness, who then signs the will in the presence of the testator. When the first witness returns to the room, the testator acknowledges their signature and the first witness then signs the will in the testator’s presence.
Has the will been executed in accordance with the formal requirements of s.9 Wills Act 1837?
A. The will has not been properly executed because the testator and both witnesses must all be in the same room throughout the execution process.
B. The will has been properly executed.
C. The will has not been properly executed because one of the witnesses did not see the testator sign the will.
D. The will has not been executed properly because the witnesses signed the will in the presence of the testator but not each other.
E. The will has not been properly executed because the witnesses are married to each other.
B. The will has been properly executed.
Correct. S 9 Wills Act 1837 requires the testator to sign the will (or acknowledge his signature) in the presence of two witnesses.
The other options were incorrect because:
- S 9 permits the testator to acknowledge his signature
- The marital status of the witnesses is irrelevant
- Provided s. 9 requirements are met there is no additional obligation for everyone in involved to be present throughout the execution process (although this is good practice)
- There is no requirement for the witnesses to sign the will in the presence of each other, only the testator
A testator died recently. The testator’s will contains a gift of £10,000 to the testator’s brother and gives the remainder of the estate equally to the testator’s spouse and children. The testator’s spouse, and the spouse of the testator’s brother, witnessed the will.
Which one of the following accurately describes the effect of the man’s will?
A. The man’s spouse, brother and children will inherit under his will.
B. The man’s brother and children will inherit under the will.
C. The man’s spouse and brother will inherit under his will.
D. The will has no effect as it was not properly executed.
E. Only the man’s children will inherit under his will.
E. Only the man’s children will inherit under his will
Where a beneficiary (or their spouse) witnesses a will the beneficiary cannot inherit under the will. In this example the testator’s spouse and the spouse of the testator’s brother witnessed the will so neither the spouse nor brother will receive any benefit. Only the gift to the children is effective.
The other options were incorrect because:
S.15 Wills Act only applies to gifts under the will – it does not affect whether or not the will was properly executed
S.15 applies to a gift to a beneficiary who witnesses a will and any gift to their spouse
