Wills Flashcards
Definition and purpose of a will
A will is an instrument by which a person makes a disposition of his property to take affect after his decease and which is in is own nature ambulatory and recoverable during his life
- operate on death and not before
- a will can be revoked prior to death
- a codicil is a testamentary instrument intended as a supplement to a previous will
Structure of a will
Commencement- stating purpose
Preliminaries- revoking prior wills
Gifts- main parts dealing with disposition of assets
Additional powers- appointing executors etc
Execution formalities- signing and attestation by witnesses
What makes a will valid?
- testator has capacity to make a will
- intention to make a will
- all formalities are complied with
Capacity to make a will
2 key factors: age and mental capacity
Age: must be 18- s7 wills act 1837
- previously age was 21. Amended by the family law reform act 1969
Mental capacity: test formulated in banks v Goodfellow and supplemented by mental capacity act 2005
Four criteria to establish a ‘sound a disposing mind and memory’
1. Understand nature of the act and its effect
2. Understand the extent of property which he is disposing
3. Comprehend and appreciate claims to which he ought to give effect
4. Not be afflicted by disorder of the mind or insane delusion
Exceptions: where settlor authorises a solicitor to execute the will- Parker v felgate
Intention to make a will
Animus testandi
Can be vitiated by a range a factors e.g fraud, mistake, undue influence
Where a solicitor is used, it is presumed animus testandi is present
Conditional wills: animus testandi established upon fulfilment of the condition: in the goods of Hugo
S20 administration of justice act 1982- courts can rectify a will which involves a clerical error- Marley v Rawlings
Formalities
S9 wills act 1837
2 key formalities
1. Signed by testator or some other person in his presence and by his discretion- in the estate of cook
2. Signature make or acknowledged in the presence of 2 witnesses at the same time- in the estate of Gibson
Witnessing: no age limits- Wilson v bedardd, mental presence- brown v skirrow, physical presence- line of sight rule, present at the same time
Attestation clauses
Not essential but highly desirable
Having it raises a presumption of due execution
If it lacks an attestation Clause- non-contentious probate rules 1987 states a registrar must require affidavit evidence of the due execution of the will
Omnia praesumuntur rite esse acta- all formalities are presumed to be carried out correctly
Methods of revocation
- By marriage or civil partnership
- By another will or codicil
- By a duly executed writing
- By destruction
Revocation by marriage or civil partnership
- a will is automatically revoked once the testator gets married
- s18.1- subject to certain exceptions a will shall be revoked by the testators marriage or civil partnership
- s19- no other change results in automatic revocation
- only applies to valid/voidable marriage
- a void marriage doesnt revoke a will- mette v mette
- a voidable marriage= marriage without consent- regarded as valid. If its annulled it will be regarded as having existed until the annulment
- thus a voidable marriage revokes a will- re roberts
Exceptions: where a will is made in contemplation of marriage to a particular person and the testator marries that person and the testator intended that the will should not be revoked by marriage- s18.3
- estates of Langston
Amendment to wills act 1837 requires an express intention - expecting to be marries to a particular person
Revocation by another will or codicil
- s20
- express or implied
- testator may revoke a will either wholly or partially by express worlds to that effect in a later will
- a subsequent will impliedly repeals an earlier will to the extent of any consistency
- revocation by some writing- sharp v Adam
- doesnt need to be drafted as a will but must be executed in compliance with the formalities for executing a will
Revocation by destruction
S20- ‘burning, tearing or otherwise destroying the same by the testator or by some person in his presence any by his direction with the intention or revoking the same’
2 key elements - act of destruction and intention to revoke- cheese v lovejoy
- where property is not destroyed there is no revocation- doe d reed v Harris
- simply cancelling the contents with a pen wont constitute destruction- stephens v taprell
- cutting of signature constitutes destruction- Hobbs v knight
- if the will cannot be found on testators death but was last known to be in his possession, it will constitute as destroyed- animus revocandi
Post- will matters
Alterations after the execution of a will
- not valid unless it’s executed in the same manner as the will- s21
- signature must be made in the margin or some other part of the will near such alteration - s21
Revival of wills
- process where a revoked will will resurrect and become operative
- will take affect once revived not when it was first executed- s37
Types of legacies in a will
General legacy/bequest
- a gift which is not identified as a particular, distinguished part of the testators estate but it is to be provided for the legatee out of the general estate
Specific legacy/bequest
- a gift which is identified as particular, distinguished part of the testators estate and described in the will
Ademption
- a specific gift will fail through ademption if the subject of the gift no longer exists as part of the estate when testator dies
Lapse of gift
Beneficiary must survive the testator otherwise the gift lapses
Exceptions: general charitable gifts (cypres doctrine), class gifts, gifts to joint tenants, gifts to children or descendant (s33.1)
Survivorship- s184 LPA 1925- deaths presumed in order of seniority- llott v the blue cross
Key features/points to note
Witnesses cannot benefit from the will
S15 wills act 1837
Gift will be ‘utterly null and void’
Solicitor will be found negligent if he prepares a will which is witnessed by a beneficiary- in the estate of bravda
Effect of divorce on wills- s18A nullifies any gift/legacy to ex spouse
