Wills and Estates 9

Question 1

How old must a testator be to make a valid Will?

Answer 1

18 - with exceptions for those in military service

Question 2

What is required for a valid will?

Answer 2

(a) it is in writing, and signed by the testator, or by some other person in his presence and by his direction; and

(b) it appears that the testator intended by his signature to give effect to the will; and

(c) the signature is made or acknowledged by the testator in the presence of 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 witness), but no form of attestation shall be necessary.

Question 3

Where should the testator’s signature be on a will?

Answer 3

At the end of the will - signatures elsewhere can be problematic

Question 4

What is the minimum number of Witnesses to a testator signing a Will?

Answer 4

2

Question 5

What is the maximum number of Witnesses to a testator signing a Will?

Answer 5

There is no maximum

Question 6

What are the requirements of a witness to a testator’s signature?

Answer 6

Must be physically and mentally present but do not need to know a will is being signed or its terms

Question 7

Both witnesses must sign the will in front of the testator, but is it necessary for each witness to also sign in front of each other?

Answer 7

No

Question 8

What is an attestation clause?

Answer 8

An attestation clause describes the circumstances under which the will was executed.

Question 9

Is there a legal obligation to include an attestation clause?

Answer 9

No

Question 10

Can gifts under a Will be made to the attesting witnesses?

Answer 10

Not if they are one of only two witnesses

Question 11

Can a solicitor be paid if the attest they will?

Answer 11

Yes

Question 12

When can gifts to the attesting witnesses be made?

Answer 12

If there are at least two other witnesses not caught by s 15, or if the will is subsequently confirmed by a properly executed codicil, the effect of s 15 can be disregarded;

Question 13

At what time does ‘knowledge and approval’ of a will by a testator apply?

Answer 13

At the time of execution, unless the exception in Parker v Felgate applies

Question 14

If the testator has testamentary capacity, is ‘knowledge and approval’ generally presumed?

Answer 14

Yes

Question 15

If the testator has testamentary capacity, when is ‘knowledge and approval’ not presumed?

Answer 15

The testator is blind or illiterate (ie unable to read the will)

The will was signed by someone on behalf of the testator

There are suspicious circumstances (e.g. the will was prepared by a key beneficiary or their relative)

Question 16

What is this attestation clause used for:

Signed by A (who understands French but cannot read English) in the presence of both of us and then by us in A’s presence after the will had been read aloud to A in English and accurately translated by B who understands English and French in our presence when A seemed thoroughly to understand and approve the contents.

Answer 16

unable to read English

Question 17

What is this attestation clause used for:

Signed by A in B’s name and on behalf of B (who is physically incapable of signing), in the presence of both of us and at B’s direction, and then by us in their presence, when the testator seemed thoroughly to understand and approve the contents.

Answer 17

physically unable to sign

Question 18

What is this attestation clause used for:

Signed by A in the presence of both of us, then by us in the testator’s presence after this document had been read over by B to the testator when the testator seemed thoroughly to understand and approve the contents.

Answer 18

blind

Question 19

What happens if only part of a Will was made as a result of ‘undue influence’?

Answer 19

That part will be invalid. The remainder may be given effect to provided that the omissions do not “upset the whole tenor of what remains”, but the court cannot add or substitute words.

Question 20

What is the definition of ‘undue influence’?

Answer 20

Where a testator is coerced into making a will, or including particular terms, against their judgement and contrary to their true intention. The testator does not genuinely exercise choice but has surrendered to pressures they were not able to withstand.

Question 21

Who has the burden of proof of showing undue influence?

Answer 21

The person making the allegation

Question 22

What will the court need if it is going to consider undue influence?

Answer 22

Evidence

Question 23

What is required to successfully bring a document into a will?

Answer 23

a) The document must exist when the will is executed (or at the time a later codicil is made – because the codicil re-publishes the original will)

b) The will must refer to the document as being in existence at the time of execution

c) The document must be clearly identified in the will

Question 24

Where a document is brought successfully into a Will, will it be public on probate?

Answer 24

Yes

Question 25

Are letters of wishes as to how the trustees of the estate should manage their discretionary powers legally binding?

Answer 25

No

Question 26

Are letters of wishes as to how the trustees of the estate should manage their discretionary powers public?

Answer 26

No

Question 27

What are the methods of amending a will?

Answer 27

• an entirely new will
• a codicil to an existing will (a formal testamentary document amending a will)
• make manuscript amendments to their original will.

Question 28

Are Post-execution alterations to a will invalid. S.21

Answer 28

Yes

Question 29

Are alterations to a will presumed to be Post-execution alterations?

Answer 29

Yes, unless there are blank spaces left to be filled in.

Question 30

How can a testator make a valid alteration to their will?

Answer 30

Needs to be signed by the testator and two witnesses (initials are sufficient)

Question 31

If the testator has obliterated the wording (so it cannot be read), is that part of the will still valid?

Answer 31

The obliteration is treated as having been made by the testator with an intention to revoke and the alteration will be effective

Question 32

What happens to the gifts that are obliterated?

Answer 32

Follow the residue clause if there is one, if not goes through intestacy

Question 33

What happens if wording is obliterated and replaced by new wording?

Answer 33

The original wording is taken unless it can be shown that the amendment was valid. Extrinsic evidence is permitted to check what the original wording was.

Question 34

What is a codicil?

Answer 34

A codicil is a formal testamentary document that amends an earlier will, rather than replaces it, and both documents remain active and are intended to be read together.

Question 35

What rules apply to the validity of a codicil?

Answer 35

Same as for a Will. A testator must have:
- testamentary capacity,
- knowledge and approval (of the codicil, and the will and any previous codicils referred to) and
- comply with s.9 Wills Act 1837

Question 36

What effect does a Codicil have on the date of a Will?

Answer 36

Codicil this acts to ‘republish’ the will (and any codicils) to which it expressly refers. The will is given effect to as if it had been executed on the date on which the codicil was executed.

Question 37

If a codicil revokes all/part of a will, and the codicil itself is then subsequently revoked, would this automatically re-instate the terms of the will that had been revoked by the codicil?

Answer 37

No

Question 38

How can a Will be revoked?

Answer 38

• ‘burning, tearing or otherwise destroying’ it
• provided there is also an intention to revoke the will.

NOTE: just writing - “revoked” will not be enough, it needs to be physically destroyed.thanks

Question 39

If another person destroys the will is this effective?

Answer 39

No unless it is at the direction of the testator and in his presence.

Question 40

What happens if If a testator is known to have made a will or codicil which they kept in their possession, but after the testator’s death the original document is missing or destoryed?

Answer 40

presumed to have been on purpose unless there is evidence to suggest otherwise (Patten v Poulton)

Question 41

How would a presumption of destruction be overcome?

Answer 41

They would have to show:

-a valid will existed when the deceased died but was lost/damaged after death

-the deceased did not intend to revoke their will​

-the deceased did not carry out or give instruction for the act of destruction​.

Question 42

What happens if a new Will is created that does not revoke the old one?

Answer 42

To the extent they are inconsistent, the later will impliedly revokes the earlier.

Question 43

What are mutual Wills?

Answer 43

Where one testator agrees with another testator to each make a will on terms agreed between them. Both testators also agree that neither of them will amend their will without the consent of the other. If a testator attempts to revoke their will, contrary to the previous agreement, equity may impose a constructive trust over that testator’s property on the terms previously agreed and limit the effect of any new will.​

Question 44

What are Mirror Wills?

Answer 44

Couples’ Will’s are the same

Question 45

What effect does marriage have on a Will?

Answer 45

When a person marries this automatically revokes in full any will (and codicil) made prior to the marriage, even if this is not the testator’s intention

Question 46

Is there a way to prevent a Will from being revoked in the face of a proposed Marriage?

Answer 46

Yes, it is possible to avoid the effect of s 18/18B by drafting the will in contemplation of marriage/civil partnership. But it must:
- name the future Spouse and
- ceremony and
- expressly state that the will is not to be revoked.

Question 47

What effect does divorce have on a Will? s.18

Answer 47

The court order confirming the divorce (decree absolute) or dissolution automatically operates as a limited/partial revocation of their will.

The will takes effect as if the former spouse or civil partner had died on the date of the court order unless it specifically states otherwise.

Question 48

What effect does divorce have if the ex is a sole executor?

Answer 48

The appointment fails (ex is treated as having died) and substitute executors will be appointed.

If no substitute executors in the will then NCPR 20 applies.

Question 49

Can a sole executor act if there’s a minor beneficiary?

Answer 49

Yes - executors = by will

Question 50

Can a sole administrator act if there’s a minor beneficiary?

Answer 50

No - administrators = intestate

Question 51

What happens if wording is obliterated and replaced by new wording, Is Extrinsic evidence permitted to check what the original wording was?

Answer 51

Yes