Wills & Estates Flashcards
In what cases is there no presumption of knowledge & approval?
If the testator is blind or illiterate
If the will was signed by someone on the testator’s behalf
If there are suspicious circumstances
What happens to the burden of proof if evidence raises doubts about knowledge & approval?
The burden of proof shifts to those relying on the presence of knowledge & approval.
When is knowledge and approval presumed?
Knowledge & approval is presumed if the testator had capacity and the will is correctly executed.
what is the effect of undue influence on a will
The will becomes invalid. Undue influence requires evidence that the testator did not intend to make the will they signed. Persuasion does not amount to undue influence.
Where only part of the will was made as a result of undue influence, the remainder will still give effect as long as the omissions do not upset the tenor of what remains.
What are the formal requirements for a will under s 9 of the Wills Act 1837?
The will must be in writing and signed by the testator (or someone else on their behalf). A minimum of two adult witnesses with capacity but be present.
The witnesses do not need to sign in each others presence but they must sign in the presence of the testator.
The witnesses full names, addresses and occupations should be noted in either the attestation or the affidavit.
What happens if a beneficiary (or their spouse/civil partner) acts as a witness?
The will remains valid, but under s 15 WA, the gift to that beneficiary is void.
Can an executor also be a witness to the will?
Yes, under s 15 WA, an executor can also act as a witness.
