Wills - Valid Wills (3) Flashcards
What makes a will valid?
Valid Wills: Wills are used to pass assets in a predetermined order. Valid wills (and codicils) require testamentary capacity, intention, and due execution. Wills are often challenged on the basis one of these grounds is not met, rendering them invalid.
(1) Testamentary Capacity: Testator has ‘soundness of mind, memory and understanding’.
(2) Intention: Testator ‘knew and approved’ of the will.
(3) Due Execution: Will was written, signed, and witnessed by two independent signatories.
(4) Further Challenge: Wills may be further challenged on grounds of force, fraud, undue influence, and mistake.
What is testamentary capacity?
Testamentary Capacity: Testators must be adults with soundness of mind, memory and understanding at the time of execution (Banks v Goodfellow).
(1) Definition: This means the Testator: a) understood that they were making a will to take effect on death; b) broadly understood the extent of their property; and c) considered any moral claims they ought to consider.
- Mental Capacity Act: The MCA 2005 provides a useful cross-check but is not the proper test: it defines capacity as an ‘impairment or disturbance in the functioning of the mind’ (Scammell v Farmer).
- Statutory Wills: The courts have power to create ‘statutory wills’ for incapable persons.
- Insane Delusions: This also means the testator suffered no ‘insane delusions’ around execution.
(2) Execution Exception: A will may be valid if the testator was incapable on execution, provided they were: a) capable on instruction; b) the will was produced by a solicitor according to their instructions; and c) they appreciated on execution that they were signing their previous instructions (Parker v Felgate).
Presumption of Capacity
Presumption of Capacity: By default, the personal representative must establish that a will is valid on applying for grant. However, capacity can be presumed, placing the burden on a challenger to prove otherwise.
(1) Presumption: Capacity is presumed if: a) the will is rational; and b) the testator showed no evidence of mental confusion prior to execution.
(2) Golden Rule: If mental confusion is shown, a solicitor should obtain a written medical report from a doctor, and have the doctor witness execution. This is difficult to challenge (Kenward v Adams).
>The solicitor’s observations should also be noted on file. If experienced and independent, difficult to challenge.
What is intention?
Intention: Testators must intend to create a will, and also to create the contents of that specific will.
(1) General Intention: Testator intended to produce a will (or codicil), not another type of document.
(2) Specific Intention: Testator knew and approved of the contents of the will on execution.
>Or on instruction if Parker v Felgate exception applies.
Presumption of Intention
Presumption of Intention: As above, evidence of intention falls on the applicant for grant, but this can be presumed.
(1) Presumption: Testator read and executed their own will on execution, and had capacity.
(2) Special Circumstances: Presumption does not apply if the Testator was blind, illiterate, or did not personally sign the will. Presumption requires a special attestation clause to confirm the will was read by or to the Testator.
(3) Further Challenge: There are a number of challenges that commonly arise here (see below).
What is due execution?
Due Execution: Wills must be written, and signed by the Testator or at their direction, in the presence or acknowledgement of two independent witnesses at the same time, who sign or attest the will in the Testator’s presence (s9 WA 1837).
(1) Writing: Wills must be written. There are few restrictions; electronic-only wills are not valid.
(2) Signed by Testator: Testator should sign the will, provided the signature intends to give effect to the will.
- Signature: Any type of mark is acceptable, including crosses, marks and nicknames (Estate of Cook).
- Third-Party Signatory: Third-parties (including witnesses) can sign for the testator, provided it is in their presence and positive discernible direction, and recorded in a special attestation clause.
Will: Must be on the will itself - signing an attached document or envelope is not effective.
(3) Witnesses: Testator must sign the will in the presence of two independent witnesses at the same time, or attest (reference) the signature in their presence at the same time.
Presence: Presence means an unobstructed line of sight (no blind witnesses).
Capacity: Witnesses must be aware the Testator is signed some form of document, and have mental capacity at the time.
Beneficial Witnesses: Beneficiaries or their spouses should not witness (lose entitlement under will).
(4) Attestation: Witness signs the will in Testator’s presence, or attests (references) their signature in the Testator’s presence. Need not be in the other witness’s presence. Includes full name (caps), address, and occupation.
Presumption of Due Execution
Presumption of Due Execution: As above, evidence falls on the applicant, but can be presumed.
(1) Attestation Clause: A clause reciting that execution formalities were observed will mean execution is presumed, provided signatures are present. This may be a special attestation clause (as above).
>Solicitors must give clear instructions on formalities, lest they could be sued in negligence (Humblestone v Martin Tolhurst).
(2) Lack of Clause: If the clause is not present, the applicant must prove execution, which is expensive.
- Affidavit of Due Execution: Person present at execution swears formalities were observed.
- Affidavit of Handwriting: Expert swears that the testator’s signature is their own.
- Judge Inquiry: A judge may determine validity.
Privileged Wills Exception
Privileged Wills Exception: Wills made by soldiers (on active duty) or sailors (at sea) can be made in any form, including orally, if there was valid intention to dispose of property on death (i.e. ‘Give my stuff to Anne if I don’t make it’) (s11 WA).
If validity is presumed, how can the will be challenged?
Further Challenge: If validity is presumed, challengers must challenge validity on further grounds. These typically aim to dispute valid intention. This renders a will invalid (or can be used to render a revocation or alteration invalid).
How can a will be challenged due to suspicious circumstances?
Suspicious Circumstances: If there are suspicious circumstances, such as the will being drafted by a major beneficiary or their close relative, the presumption of intention does not apply. The applicant for grant must prove intent on application.
(1) Duties of Solicitor: Solicitors should ensure they do not draft wills on third party instructions, and independently interview testators. Instructions should be clearly recorded.
(2) Case Law: Case law demonstrates suspicious circumstances.
>Family solicitor drafted will for low IQ woman, entire estate was left to him. Cousin challenged validity, and the solicitor could not prove specific intent (Wintle v Nye).
>Testator promised estate to daughter, but left it to RSPCA. She was deemed insane, and as there was no evidence the will had been read or explained to her, the will was invalidated (Gill v Woodall).
How can a will be challenged due to mistake?
Mistake: Challenger may allege part of the will was included by mistake, meaning without knowledge and approval. This also overrules presumption of intention, placing burden on applicant for grant.
(1) Definition: Words were included in the will by mistake. These will be omitted by the court.
(2) Threshold: This requires lack of awareness of the contents, not misunderstanding as to the legality of the will. Poor legal comprehension does not invalidate inclusion of any words (i.e. not understanding what ‘realty’ means).
How can a will be challenged due to undue influence?
Undue Influence: Challenger may allege the will was written due to undue influence (meaning coercion or duress).
(1) Burden of Proof: Challengers have the burden of proof, even if presumption does not exist. This is a high bar, and unsuccessful challengers will be penalised in costs.
(2) Threshold: Testator’s freedom of choice was overcome by intolerable pressure, even though their inner judgment remained the same. Persuasion falling short of undue influence is not sufficient.
(3) Force or Threat: Force or threat of force is also a form of undue influence.
(4) Solemn Form Grant: If challenge is unsuccessful, courts issue a solemn form grant of representation, meaning no further challenges are permitted unless new evidence can be produced.
How can a will be challenged due to fraud or forgery?
Fraud or Forgery: Challenger may allege the will or signature was forged, or false information was used to manipulate the contents of the will. This also invokes solemn form grants.
