Wills' Validity Flashcards
Three key requirements for making a valid will
- Testamentary Capacity.
- Knowledge & Approval.
- Formalities are followed.
When does a testator need to have capacity (general rule)?
Both during instructions and at the time of execution i.e. signed.
What does ‘ademption’ relate to?
The item is no longer owned.
What does ‘lapse’ relate to?
The beneficiary has predeceased the testator
Test for capacity – Banks v Goodfellow
- T understood the nature of the act and its effects;
- T understood the extent of their property being disposed of;
- T understood the moral claims to which they ought to give effect to;
- No disorder of the mind affected T’s senses or natural capacities.
Exception to capacity at execution – Parker v Felgate
- T had capacity when giving instructions for the will;
- The will was prepared in accordance with the instructions;
- 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.
Normal rules for capacity and timing
T must have capacity at the time of instructions and execution.
Golden rule of best practice
Where taking instructions for an elderly or seriously ill client, a medical assessment of capacity should be conducted (detailed notes to be taken).
When is capacity presumed?
When a will appears to be rational and it has been properly executed.
What happens when capacity is challenged?
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.
Intention required for making a will
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).
When are knowledge and approval presumed?
Where capacity is present and the formalities for making a will are met.
When are knowledge and capacity not presumed?
- When something impinges on T’s ability to understand the will i.e. T is blind. illiterate or doesn’t speak the language.
- Someone else signs on T’s behalf.
- Suspicious circumstances i.e. undue influence.
Note – the attestation clause of the will can address the specific circumstances i.e. where T is blind.
What will be required for will to be valid if knowledge and capacity cannot be presumed?
Affidavit
Undue influence
No intention where T was coerced into making a will or including particular terms (persuasion is insufficient).
S15 WA – Effect of gifts to an attesting witness or their spouse
Gifts void unless two additional witnesses are present or the will is later confirmed by a codicil witnessed by different people.
S9 Formalities – signature witnessed/acknowledged by witnesses
- 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.
- 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).
Effect of attestation clauses
Presumption of compliance with S9 formalities.
Gifts to solicitors
Presumption of no knowledge or approval where the will benefit the person who prepared it.
