Wills and Administration of Estates Flashcards
What are the formalities for a Will to be executed correctly?
a) In writing, and signed by the testator (or someone else in the testators presence and by his direction) AND
b) it appears the signature intends to give effect to the will; AND
c)The signature is made (or acknowledged by the testator if not signing themselves) by two or more witnesses present at the same time; AND;
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 witnesses), but no form of attestation is required.
Are attestation clauses required?
No, but in practice all good wills will have them an example of one is: Signed by [Testator] in our joint presence and attested by us in his presence [witness signatures].
What are the legal presumptions attached to an attestation clause?
That the Will has been executed in accordance with s9. It is called a presumption of due execution.
What should be added for blind or illiterate testators?
A special attestation clause. Clause will set out will was read aloud in the presence of witnesses and testator confirmed it understood its contents.
Will a will be admitted to probate if it is not dated?
No, some kind of evidence must be submitted to confirm the date of the will.
How old must a testator be to have capacity?
18 years old
Is there a presumption that a testator has mental capacity?
Yes
What is the rule in Parker v Felgate?
If there was capacity when instructions were given and the testator understands they are signing a will prepared in accordance with those instructions (even if they don’t remember giving the instructions) then there is sufficient capacity on execution for a valid will.
What is the test in Banks v Goodfellow?
Did the testator understand the nature of the will and its effects? Did the testator understand the extent of the property they were disposing of by the will? Did the testator understand the claims to which they ought to give effect?
When does the presumption of intention not apply?
When the testator is blind or illiterate, or where the circumstances in which the will was made are suspicious
Who must prove that force, fear, fraud or undue influence has taken place?
The person asserting them and on the balance of probabilities.
Why should a testator be seen by a solicitor on their own when making a will?
To ensure it is the testator’s own instructions and that there is no force, fear, fraud or undue influence.
What is the role of a Personal Representative?
To hold onto the estate assets for a short period and distribute them to the right people at the earliest practicable moment.
What are the three types of PRs?
Executors (using a will), Administrators (for intestacy) and Administrators with a will (when the executor won’t perform the role)
What is the usual provision with appointing an executor?
They must be specifically named (or the role of executor can be inferred from duties granted in the will eg arranging funeral) unless it is solicitor from a particular firm being named.
