Wills Flashcards
What is a will ?
○ 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
Marriage/civil partnership - impact on a will
will revoke a will unless expressly stated it was made in contemplation of that thing
Divorce/dissolution - impact on a will
the spouse named in a will dated befoer the divorce and dissolution are treated as they predeceased the testator
What is necessary for a will to be considered a will ?
A will has to dispose of property to be a will - Sangha v Sangha [2022]
Testamentary freedom
In theory you can dispose of everything you own at death
Ambulatory
○ 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
Revocable
○ It is possible to cancel a will you previously drafted
You only have 1 will operative at any time
3 qualities of all wills
testamentary freedom, ambulatory, revocable
Codicil
amend or adds to a will; it republishes a will; it is part of the original will itself
Grant of probate
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
Probate
the legal right to deal with someone’s property, money, and posessions when they die
Are burial arrangements legal or moral obligations ?
can be included in the will (it is a choice for the executors whether this is followed)
The obligation is purely moral
S.3 Wills Act 1837
S.3. - All property may be disposed of by will
S.7 Wills Act 1837
S.7 - a person must be 18 years of age to make a will
S. 11 Wills Act 1837
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
S.9(1)(a) Will Act 1837
a will must be in writing, signed by the testator, or by some other person in his presence and by his discretion
S.9(1)(b) Will Act 1837
S.9(1)(b) - Animus testandi. It must appear that the testator intended by their signature to give effect to the will.
In the Goods of Chalcraft [1948]
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.”
S. 9(1)(c) Wills Act 1837
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
S.9(1)(d) Wills Act 1837
○ 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
S.15 Wills Act1837
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.
Age gifts to an attesting witness or their spouse/cp valid ?
NO they are null and void but their role as a witness is still valid
They cant take their gifts, but everyone else can
Can a person who signs on behalf of the testator on his doscretion be a beneficiary ?
○ 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
In he Estate of Bravda [1968]
○ 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
Steps to signature + acknowledgment
- 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
Line of sight rule
- 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
Attestation clause
- 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
