Wills 1

Question 1

When a person dies, how may their estate (assets and liabilities) pass to others?

Answer 1

• Will* Laws of intestacy* Mix of will and laws of intestacy* Other rules: joint property, life assurance policies, pension scheme death benefits, nominated property, life interests in trust property, gifts where donor received a benefit

Question 2

What are the 3 requirements to create a valid will?

Answer 2

Testator (i.e., the person making the will) must have: * Had capacity at the time the will was made; * Intended to make a will; and* Executed the will in accordance with certain formalities. Generally, if any are missing, the will cannot be offered into probate.

Question 3

What is a will?

Answer 3

A testator’s legal declaration of how they wish their property to be disposed of after their death. It may include wishes for funeral arrangements.

Question 4

What are the 2 requirements for a testator to have capacity?

Answer 4

• at least age 18 (note: ‘privileged wills’ exception) and * mental capacity (presumed unless challenged)

Question 5

What is the statutory test for a lack of capacity to make a will?

Answer 5

A person lacks capacity if: * At the material time, * The person is unable to make a decision for themselves in relation to the matter in question, * Because of an impairment of, or a disturbance in the functioning of, the mind or brain.Note: this is essentially a restatement of the common law test

Question 6

What is the common law test for mental capacity to make a will?

Answer 6

Testator must have understood, at the time of execution of their will: * The nature of the act (i.e. that they were making a will and its effects); * The extent of their property; and * The claims to which they ought to give effect (i.e. who normally would be the persons a testator would ordinarily give gifts to–this doesn’t mean that only these persons should be given gifts, but rather only that the testator understood who these persons would be).

Question 7

T has two children, A and B. Thomas makes a will, leaving all of his money and property to Oxfam to help them fight poverty throughout the UK. After T dies, A and B discover the will and they want to challenge it. How might they challenge the will?

Answer 7

• Nature: They can bring in evidence showing that T was so mentally incapable, that he really didn’t understand that the document had any significance. Perhaps he thought he was writing an adventure story, or that whilst he knew he was writing a document called a will, he was so out of it that he thought a will was advisory only and not binding. * Extent:They can bring in evidence that T didn’t understand that he was giving away millions. * Claims: They could try showing that T was so out of it that he didn’t understand that they were his children, or that one would normally leave money to their children, or that he was allowed to leave money to his children. Note, if A and B don’t do anything, it will be assumed that T did have capacity. Capacity is only an issue if someone makes it an issue.

Question 8

What is the ‘material time’ for the purposes of having capacity to make a will?

Answer 8

• In most cases, it is when the testator executed (signed) the will. * Note, an exception where they had capacity when giving instructions, will was drafted according to the instructions and later lost capacity but understood they were making a will.

Question 9

In what situation will a testator who didn’t have adequate mental capacity at the time of execution be deemed to have sufficient capacity?

Answer 9

If * they had sufficient capacity when giving instructions to the will drafter* 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 instructions had previously been given, the testator will be deemed to have acted with capacity.

Question 10

A client wishes to have a will arranged. He tells you that he has Alzheimer’s disease. With his consent, you contact the client’s doctor. She tells you that the client has moderate dementia and certainly has times, more often than not, when he would have the necessary capacity to make a will. How would you prevent a later challenge to the will?

Answer 10

• Arrange for the doctor to be present at the signing of the will (either to sign as a witness or provide a note confirming that the client at the time of execution was capable of understanding the nature and effect of the will). * Make a file note of the circumstances existing at the time of execution of the will.

Question 11

What 2 types of intention must a testator have to make a will?

Answer 11

• A general intention to make a will (i.e. not any other document), and * A specific intention to make the particular will i.e., the testator must have known and approved the contents of the will when the testator executed it. If the testator had mental capacity, they are presumed to have had specific intention (except where blind/illiterate/will signed on testator’s behalf or in suspicious circumstances) which is rebuttable by a challenger proving lack of intention usually by force, fear, fraud, undue influence or mistake.

Question 12

When does the presumption of specific intention to make a will not apply?

Answer 12

If: * the testator is blind or illiterate, or the will is signed on the testator’s behalf (note: usually an attestation clause will be added so presumption applies); or * there are suspicious circumstances, e.g. drafter substantially benefits from the willIf either apply, the gift will fail unless evidence of the testator’s knowledge and approval of the gift is offered by the person putting forward the will.

Question 13

Which 4 factors are considered by the court in deciding whether a will is invalid due to lack of specific intention?

Answer 13

• Whether the will is short and easy to understand; * Whether the testator was literate; * Surrounding facts, e.g. whether the testator asked two people to witness the document, indicating the testator knew it was a will; and * Whether there are any suspicious circumstances surrounding the will, e.g. whether a beneficiary procured the will.

Question 14

If a client proposes to make a gift to a solicitor, what should the solicitor do?

Answer 14

• If regulated by the SRA, a solicitor is required to act with honesty and integrity. * It is sensible to have a policy of refusing to act when a client proposes to make a gift of significant value to a fee earner in a firm (or a member of their family) unless the client seeks independent legal advice. * This also avoids any conflict of interest.

Question 15

If the presumption of specific intention to make a will applies, what 4 circumstances may be used to rebut the presumption?

Answer 15

• Force (duress)* Fear (duress)* Fraud * Undue InfluenceIf any of the above apply, the will is not regarded as the act of the testator and is not admitted to probate.

Question 16

When will duress rebut the presumption that a testator had specific intention?

Answer 16

Duress occurs when the testator has been injured or threatened with injury (i.e. force or fear). If duress applies, the will of the testator will be admitted to probate only if a court pronounces that it is valid and issues a grant in solemn form.

Question 17

When is a grant in solemn form granted?

Answer 17

To receive a grant in solemn form (e.g. if a will is made under duress):* the executor, or any person interested in the will, propounds the will in a claim in which they ask the court to determine the validity of the will. * All interested persons will be parties to the claim. * Upon hearing evidence, the court will pronounce as to the validity of that will. * If the will is pronounced valid, the court will order the issue of a grant of probate.

Question 18

What does ‘propound a will’ mean?

Answer 18

To take legal action to have a will authenticated as part of the probate process

Question 19

When will undue influence rebut the presumption of specific intention to make a will?

Answer 19

• Anyone alleging undue influence has to show more than persuasion (which is permissible). They need to prove that there was coercion or pressure that overpowered the freedom of action of the testator (usually by a recipient of a large gift). * Undue influence is not presumed, but the court will intervene if the testator surrendered to intolerable pressure. * The court is more inclined to find undue influence when the testator is physically or mentally weak.

Question 20

A testator’s will left her estate in equal shares to her three children: A, B, and C. The testator had a close relationship with A and C, but her relationship with B was strained after years of emotional abuse. The testator became ill and moved into a nursing home. B removed her from the nursing home and prevented her from contacting A and C. The testator began making false accusations against A and C, and she executed a new will in which she left her entire estate to B. On what grounds might A and C challenge the will?

Answer 20

A court would likely hold that the will was procured by B’s undue influence.

Question 21

Which 4 formalities are required in order for a will to be valid?

Answer 21

• In writing (i.e. handwritten, typed, or printed as opposed to oral); * Signed by the testator or by some other person in the testator’s presence and by their direction in a way that makes it appear the testator intended by the signature to give effect to the will; * Signed or acknowledged by the testator in the presence of two or more witnesses present at the same time; and* Signed by each witness in the presence of the testator (but not necessarily in the presence of any other witness), or each witness must acknowledge their prior signature in the presence of the testator (again, not necessarily in the presence of any other witness). Note that these rules do not apply to privileged wills, which can be made informally, even orally.

Question 22

When do the formalities usually required for a valid will not apply?

Answer 22

When the will is a ‘privileged will’, which can be made informally, even orally

Question 23

What is a ‘privileged will’?

Answer 23

A will made by members of the armed forces on active service or seamen at sea

Question 24

What is an attestation clause?

Answer 24

• A clause included to confirm the formalilty requirements of a valid will e.g. “Signed by the testator in our presence and then by us in his”. * If an attestation clause is not included in a will, the proponent of the will must offer proof that these formalities were followed - usually in the form of having one of the witnesses testify. * A ‘special attestation clause’ is necessary for a blind or illiterate testator

Question 25

What is the ‘proponent’ of a will?

Answer 25

The person offering the will into probate.

Question 26

What is a special attestation clause and when will it be required?

Answer 26

It is necessary for a blind/illiterate testator to evidence that:* it was read to them, * they understood and approved its contents, and * they then signed or it was signed by another in the testator’s presence and at his direction.

Question 27

What are the signature requirements of a valid will?

Answer 27

Form* Usually the testator’s actual signature is used but a mark (e.g a thumbprint) can be used for someone unable to write. * May be: Initials, A stamped signature, A cross, An unfinished signature, A signature in pencil, and The words “your loving mother”. Placement* Usually at the end but may be anywhere* If handwritten by the testator and begins, “I [the testator’s name]”, this line may serve as the signature. Another person can sign on testator’s behalf* Must be in presence of testator and at their direction (may be a witness but not necessarily)

Question 28

What is required of a witness to a will?

Answer 28

They must be capable of understanding the significance of being a witness to a signature (no formal requirements). * do not need to see the contents of the will or even know that the testator is signing a will. * An illiterate person is capable of being a witness, provided the person is aware that the testator is signing the document.

Question 29

Who is incapable of witnessing a will?

Answer 29

• A blind person* A mentally unsound person (note a subsequent loss of mental capacity does not affect the validity of a will that was witnessed by a person who was competent at the time of the witnessing). * A beneficiary of a will (or their spouse) should not be a witness (gift could fail)

Question 30

Can documents be incorporated into a will by reference?

Answer 30

Yes, a will may identify another document that, effectively, becomes part of the will. * the document must exist at the date of the will and * be referred to in the will as so existing- otherwise, it cannot be incorporated. A future intention to make the list, schedule, or memorandum does not suffice.

Question 31

A will states that “I leave £1,000 to each of the persons named in my book called ‘my notebook 2019’ to be found in my desk drawer”. Is this notebook validly incorporated into the will?

Answer 31

Yes, the list of people already exists at the date of the will

Question 32

A will states that “I leave £1,000 to each of the persons named in my notebook which I shall write before my death”. Is this notebook validly incorporated into the will?

Answer 32

No. Even if the person wrote names in the notebook before the will was executed, the notebook would not be admitted to probate, as the will refers to its coming into existence at a later date.

Question 33

T asks two friends, C and D, to sign his will as witnesses. They gathered in T’s sitting room. T realises he does not have any pens. He picks up the will, goes to his study, picks up a pen, signs the will, and asks C and D to sign as witnesses and they do. Is the will validly witnessed?

Answer 33

No because the testator did not sign in the presence of the witnesses. However, it would have been validly witnessed if when he returned to the sitting room, T said something like, “This is my signature. Will you sign this will as my witnesses?” and then the witnesses sign.

Question 34

T asks two friends, C and D, to sign his will as witnesses. They gathered in T’s sitting room. T signs, then hands the will to C to sign and leaves to use the toilet. C signs. T returns and hands the will to D who signs. Is this will validly witnessed?

Answer 34

No because C was not in the presence of T when she signed.

Question 35

T asks two friends, C and D, to sign his will as witnesses. They gathered in T’s sitting room. T signs. C signs and immediately leaves to use the toilet. Then D signs. Is this will validly witnessed?

Answer 35

Yes because T signed in the presence of both witnesses and each witness signed in the presence of T. It doesn’t matter that the witnesses were not in each other’s presence.