Wills and Estate Administration - Execution of Wills

Question 1

Will Validity

Answer 1

Three requirements:

• Capacity at time will was made
• Intended to make a will
• Executed will in accordance with formalities

Question 2

Capacity

Answer 2

• At least age 18 (unless a member of the armed forces on active service or seaman at sea) and have mental capacity
• Person will be presumed to have capacity unless someone challenging a will proves otherwise

Common law test: testator must have understood:

• The nature of the act
• Extent of their assets
• Claims to which they ought to give effect (who normally would testator would give gifts to)

N.B. this doesn’t mean the testator must give gifts to those people, only that they understood this

The testator must have had capacity at the time they signed the will

Question 3

Intention

Answer 3

General intention to make a will

Specific intention to make the particular will in question

General rebuttable presumption of general and specific intention - this presumption does not apply in two circumstances:

• Testator is blind or illiterate or will signed on their behalf (will would include an attestation clause for presumption to apply saying the will was read to the testator and they approved the contents)
• Suspicious circumstances (e.g. will drafter substantially benefits from will) - gift would fail unless evidence of testator’s knowledge and approval of gift offered by person putting forward the will

Grounds for challenging a will when the presumption does apply:

• Duress: force or fear
• Undue influence (requires more than persuasion to make a will or a will with certain provisions - there needs to be coercion or pressure that overpowered the freedom of aciton of the testator)
• Mistake

Question 4

Will Execution

Answer 4

Will formalities:

• In writing
• Signed by testator (or by some other person in their presence or by their direction)
• Signed or acknowledged by testator in presence of two or more witnesses
• Signed by witnesses in presence of testator (witnesses don’t need to be in the presence of each other)

Attestation clause will usually be included to confirm the formalities have been complied with (if not, the person offering the will into probate will have to provide proof)

Question 5

Signed

Answer 5

What counts as a signature?

Any mark the testator intends to be their signature

Can be anywhere on the will

Another person may sign on the testator’s behalf provided the signature is made in the presence of and by the direction of the testator

Question 6

Witnesses

Answer 6

• Beneficiaries should not be a witness
• Do not need to know that what they are signing is a will or have seen the provisions of the will
• Do have to be capable of understanding the significance of being a witness to a signature (them becoming incompetent later would not invalidate the will)
• Attestation clauses usually included in wills confirming that testator signed will in presence of witnesses and they signed in the testator’s presence
• Subsequent loss of mental capacity does not affect validity of will provided the witness had mental capacity at the time

Question 7

External Documents

Answer 7

Can form part of a will provided it existed when the will was executed

Question 8

Intention: Factors to Consider

Answer 8

• Whether the will is short and easy to understand
• Whether the testator is literate
• Surrounding facts
• Suspicious circumstances

Question 9

Duress

Answer 9

• Force or fear
• Not considered an act of the testator
• Will be admitted to probate if the will is propounded (i.e. legal action to have will authenticated) and the court issues a grant in solemn form
• On hearing evidence the court will pronounce as to the validity of that will - if valid the court will issue a grant of probate