Wills' Validity

Question 1

Three key requirements for making a valid will

Answer 1

1. Testamentary Capacity.
2. Knowledge & Approval.
3. Formalities are followed.

Question 2

When does a testator need to have capacity (general rule)?

Answer 2

Both during instructions and at the time of execution i.e. signed.

Question 3

What does ‘ademption’ relate to?

Answer 3

The item is no longer owned.

Question 4

What does ‘lapse’ relate to?

Answer 4

The beneficiary has predeceased the testator

Question 5

Test for capacity – Banks v Goodfellow

Answer 5

1. T understood the nature of the act and its effects;
2. T understood the extent of their property being disposed of;
3. T understood the moral claims to which they ought to give effect to;
4. No disorder of the mind affected T’s senses or natural capacities.

Question 6

Exception to capacity at execution – Parker v Felgate

Answer 6

1. T had capacity when giving instructions for the will;
2. The will was prepared in accordance with the instructions;
3. At the time of execution, T understood they were signing a will for which they had previously given instructions.

Used where unexpected events occur or capacity fluctuates. The solicitor is required to take detailed notes that client remembers instructions were given and will prepared in accordance.

Question 7

Normal rules for capacity and timing

Answer 7

T must have capacity at the time of instructions and execution.

Question 8

Golden rule of best practice

Answer 8

Where taking instructions for an elderly or seriously ill client, a medical assessment of capacity should be conducted (detailed notes to be taken).

Question 9

When is capacity presumed?

Answer 9

When a will appears to be rational and it has been properly executed.

Question 10

What happens when capacity is challenged?

Answer 10

If evidence challenging capacity is provided, the presumption of capacity is rebutted and the burden of proving that the will was rational reverts to the PRs.

Question 11

Intention required for making a will

Answer 11

General intention – to make a will that disposes of T’s property and should take effect after death.
Specific intention – to make the particular will being signed (T must know and understand the content of the will).

Question 12

When are knowledge and approval presumed?

Answer 12

Where capacity is present and the formalities for making a will are met.

Question 13

When are knowledge and capacity not presumed?

Answer 13

1. When something impinges on T’s ability to understand the will i.e. T is blind. illiterate or doesn’t speak the language.
2. Someone else signs on T’s behalf.
3. Suspicious circumstances i.e. undue influence.

Note – the attestation clause of the will can address the specific circumstances i.e. where T is blind.

Question 14

What will be required for will to be valid if knowledge and capacity cannot be presumed?

Answer 14

Affidavit

Question 15

Undue influence

Answer 15

No intention where T was coerced into making a will or including particular terms (persuasion is insufficient).

Question 16

S15 WA – Effect of gifts to an attesting witness or their spouse

Answer 16

Gifts void unless two additional witnesses are present or the will is later confirmed by a codicil witnessed by different people.

Question 17

S9 Formalities – signature witnessed/acknowledged by witnesses

Answer 17

1. Where the testator is signing the will, the signature must be completed in the presence of at least two witnesses, present at the same time. The witnesses do not need to be able to see the contents of the will/know that the testator is signing a will. They must, however, be able to see the testator writing the signature, though it is not necessary for them to see the signature itself.
2. Alternatively, T might sign the will and then acknowledge that signature (by words or conduct) in the presence of the (two or more) witnesses, who must be present at the same time and be able to see the signature. Again, ideally, this will be recited in the attestation clause.

Example – T can sign in front of one witness while the the one takes a call because they are both in the same area (and then show the other).

Question 18

Effect of attestation clauses

Answer 18

Presumption of compliance with S9 formalities.

Question 19

Gifts to solicitors

Answer 19

Presumption of no knowledge or approval where the will benefit the person who prepared it.