Wills

Question 1

What is a will ?

Answer 1

○ A written document(s)
○ Intended to take effect as a will
○ And only on death
○ Complying with required formalities
○ Disposing of real and personal property
○ As gifts/bequests, devices, legacies, or residuary
§ Residuary - anything that is left after re-distribution of the previously mentioned assets
Solely or in conjunction with other transfer mechanisms

Question 2

Marriage/civil partnership - impact on a will

Answer 2

will revoke a will unless expressly stated it was made in contemplation of that thing

Question 3

Divorce/dissolution - impact on a will

Answer 3

the spouse named in a will dated befoer the divorce and dissolution are treated as they predeceased the testator

Question 4

What is necessary for a will to be considered a will ?

Answer 4

A will has to dispose of property to be a will - Sangha v Sangha [2022]

Question 5

Testamentary freedom

Answer 5

In theory you can dispose of everything you own at death

Question 6

Ambulatory

Answer 6

○ Operates at the time of the death even if you didn’t own it at the time you made the will
It moves with the time

Question 7

Revocable

Answer 7

○ It is possible to cancel a will you previously drafted
You only have 1 will operative at any time

Question 8

3 qualities of all wills

Answer 8

testamentary freedom, ambulatory, revocable

Question 9

Codicil

Answer 9

amend or adds to a will; it republishes a will; it is part of the original will itself

Question 10

Grant of probate

Answer 10

a document that confirms the executors of a will have the authority to deal with the assets of a deceased person; you have to submit a will to a probate to get the grant

Question 11

Probate

Answer 11

the legal right to deal with someone’s property, money, and posessions when they die

Question 12

Are burial arrangements legal or moral obligations ?

Answer 12

can be included in the will (it is a choice for the executors whether this is followed)
The obligation is purely moral

Question 13

S.3 Wills Act 1837

Answer 13

S.3. - All property may be disposed of by will

Question 14

S.7 Wills Act 1837

Answer 14

S.7 - a person must be 18 years of age to make a will

Question 15

S. 11 Wills Act 1837

Answer 15

S.11 for soldiers etc. - and mariners are exempt from the formalities of the Act i.e. they may be under 18 years of age and they may make an oral will or a written or holographic will that is not witnessed; for deathbed emergencies on;y for special circumstances

Question 16

S.9(1)(a) Will Act 1837

Answer 16

a will must be in writing, signed by the testator, or by some other person in his presence and by his discretion

Question 17

S.9(1)(b) Will Act 1837

Answer 17

S.9(1)(b) - Animus testandi. It must appear that the testator intended by their signature to give effect to the will.

Question 18

In the Goods of Chalcraft [1948]

Answer 18

Is an incomplete signature valid ? - yes
+ meaning of presence -“the proposition that a will to be valid must be attested in the presence of the deceased; and that means not only the physical presence of the deceased, but the mental presence of the deceased.”

Question 19

S. 9(1)(c) Wills Act 1837

Answer 19

S. 9(1)(c) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and

Question 20

S.9(1)(d) Wills Act 1837

Answer 20

○ S. 9(1)(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

Question 21

S.15 Wills Act1837

Answer 21

Gifts to an attesting witness or their spouse/civil partner are utterly null and void, but the will and their role as a witness is still valid.

Question 22

Age gifts to an attesting witness or their spouse/cp valid ?

Answer 22

NO they are null and void but their role as a witness is still valid
They cant take their gifts, but everyone else can

Question 23

Can a person who signs on behalf of the testator on his doscretion be a beneficiary ?

Answer 23

○ S. 9(1)(a) Signing on behalf of the testator and at the testator’s direction
○ See: Barnett v Bem [2012] Ch. 573
○ A person who signs a will on behalf of the testator on his direction can be a beneficiary provided there are 2 other witnesses present as well
They already decided that the person signing on behalf of the testator didn’t have authority to do so

Question 24

In he Estate of Bravda [1968]

Answer 24

○ If there are any other signatures on the will - it is presumed they belong to the witnesses
Because of s.15 the gifts for daughters fail because they sign and you cant be a beneficiary to a will you are a witness to as well

Question 25

Steps to signature + acknowledgment

Answer 25

• S.9(1)(c ) - step 1 (has to be complete before step 2)
  ○ 3 people in the room when T signs or acknowledges his/her signature
  ○ T must be present
• S.9(1)(d) - step 2
  ○ 2 people in the room when W signs or acknowledges his/her signature
  T must be present

Question 26

Line of sight rule

Answer 26

• Casson v Dade (1781) - “opportunity to see”
  ○ She signed a will at her solicitor’s office in presence of 2 witnesses
  ○ She has asthma and started feeling bad before the witnesses signed, she went to her carriage that was outside
  ○ The witnesses can now sign later on - but back in the days they had to in the presence of the testator
  ○ Was she present ?
  ○ The carriage was in front of the window where the witnesses were signing
  ○ Someone from the carriage attested that she could have seen them sign it through the window
  ○ She would have had the opportunity to see it
  A blind person can NOT be a witness because of this rule

Question 27

Attestation clause

Answer 27

• What is it ? - it recites any applicable execution formalities required from the document to take effect, and which confirms the relevant requirements have been observed
• It raises a presumption of due execution
  Different form if the testator is unable to sign, blind, illiterate, the witness is electronically witnessed