wills and the IPFDA 1975 (workshop 2)

Question 1

what are the legal requirements of a will? (there are 3)

Answer 1

testamentary capacity, knowledge and approval and formal requirements/s9 of wills act 1937

Question 2

what does ‘testamentary capacity’ mean?

Answer 2

a testator must be mentally capable of making a will

Question 3

what is the test for testamentary capacity? (banks v goodfellow) (there are 4 factors)

Answer 3

1. understand the nature of the act and its effects
2. appreciate the extent of the property of which they are disposing
3. understand and appreciate the moral claims to which they ought to give effect
4. have no disorder of the mind that perverts their sense of right or prevents the exercise of their natural faculties in disposing of property by will

Question 4

what are the exceptions when a testator doesn’t need to have testamentary capacity AT THE TIME the will is executed?

Answer 4

1. they had testamentary capacity AT THE TIME they gave instructions
2. the will was prepared in accordance with those instructions
3. testator understood they were signing a will for which they had previously given instructions

Question 5

what is the golden rule in reference to testamentary capacity?

Answer 5

when taking instructions from someone who is elderly or seriously ill, a medical practitioner should be instructed to make an assessment of the testators capacity.

Question 6

is the golden rule for testamentary capacity a legal obligation?

Answer 6

no it is not but it is considered best practice

Question 7

in what situations are there no presumption of knowledge and approval (testamentary capacity)?

Answer 7

the testator is blind or illiterate
the will was signed by someone on behalf of the testator
there are suspicious circumstances

Question 8

what happens if the will is made under undue influence or duress?

Answer 8

it is NOT valid because the will doesn’t reflect the testator’s true intentions

Question 9

can a testator be suffering from an insane delusion and still have testamentary capacity?

Answer 9

yes they can if the delusion is unconnected with and has no effect on the terms of the will.

Question 10

what is a propounder?

Answer 10

the person seeking to admit the will to probate, usually the executor

Question 11

what happens if evidence is provided that there was grounds for lack of capacity?

Answer 11

if evidence is provided, then the presumption of capacity is rebutted and the burden of proof reverts to the propounder of the will to demonstrate the testator satisfied the banks v good fellow test.

Question 12

what is the presumption in relation to knowledge and approval?

Answer 12

presumption is that the testator had knowledge and approval if the will was executed in accordance with requirements of s9 WA 1837

Question 13

what are the 3 situations when there is no presumption of knowledge and approval?

Answer 13

1. testator is blind or illiterate
2. will was signed by someone on behalf of testator
3. there are suspicious circumstances

Question 14

what is an attestation clause?

Answer 14

clause that explains the circumstances under which the will was executed

Question 15

What happens if a will is made under undue influence or duress?

Answer 15

The will will not be valid because it does not reflect the testator’s true intention.

Question 16

Who has the burden of proving undue influence?

Answer 16

The person who makes the allegation has the burden of proof and the court requires evidence

Question 17

is there a legal obligation to include attestation clause?

Answer 17

No, there is no legal obligation

Question 18

what must happen for a will to comply with section 9 of the wills act 1837?

Answer 18

It must be in writing and signed by the testator (or by someone else on their behalf)

Question 19

what is a cy-près doctrine?

Answer 19

if a gift in a will is given to a charity that ceases to exist then it can go to another charity of the same general charitable purpose

Question 20

what is the role of a personal representative?

Answer 20

The role of a personal representative is to collect the deceased’s assets and administer the estate. They must pay the deceased steps, administration costs and expenses and distribute assets to the correct beneficiaries

Question 21

Is a will valid without a revocation clause?

Answer 21

Yes it is valid however it should be included as a matter of good drafting to avoid uncertainty

Question 22

what is the minimum number of executives that are required?

Answer 22

A minimum of one executor is required but it is often better to appoint at least 2

Question 23

what is the maximum number of executors on a will?

Answer 23

maximum number of executors is 4

Question 24

can a person be both an executor and a trustee?

Answer 24

Yes they can and this is quite common

Question 25

What happens if a testator outlines a specific gift for example, the gift of my blue Hyundai. However at the time of death the testator no longer owns my blue Hyundai?

Answer 25

This gift would fail to take effect and the beneficiary would receive nothing because that specific gift is no longer in the testators possession at the time of death

Question 26

What is a general legacy?

Answer 26

It is a gift of property which is not distinguished from property of a similar type so for example ‘a’ rather than ‘my’. Eg, I give £1000

Question 27

What is a residuary gift?

Answer 27

It is a gift of all of that estate as property which has not already been disposed of under the will

Question 28

Who bears the burden of cost for the cost of delivery of an item or the expense incurred since the date of death in preserving the item to ensure its upkeep?

Answer 28

The person who bears this is the specific beneficiary who is gaining that item