Wills: Validity Flashcards
What are the legal requirements of a Will?
Over 18
Testamentary Capacity
Knowledge and approval
S9 WA formal requirements
What was the common law test in Banks v Goodfellow for testamentary capacity?
- Understand the nature of the act and its effects;
- Appreciate the extent of the property of which they are disposing;
- Moral claims to which they ought to give effect + no disorder of the mind that perverts sense of right or prevents the exercise of their natural faculties in disposing of property by will.
What was meant by nature of the act in Banks v Goodfellow?
- Understand they are signing a document that takes effect on death and disposes of their property
- Broad effects, not every detail
What was meant by extent of the property in Banks v Goodfellow?
- General recollection of what they own/approx. and relative value of assets
- Not required to recall every item/precise value
- General understanding not perfect memory
What was meant by moral claims in Banks v Goodfellow?
- Anyone who they owe a moral responsibility
- ‘Nearest to them in kindred/objects of their affection
- No requirement to leave anything to them
What was meant by no disorder of the mind in Banks v Goodfellow?
- Insane delusions/affect judgement generally or specific dispositions
- Insane delusion unconnected/no effect on Will terms = capacity
What did Parker v Felgate say about testamentary capacity?
Someone who lacks TC at time of execution can still be valid if:
o TC at time gave instructions for preparation of Will and
o Will in accordance with those instructions and
o At execution understands signing a Will which they previously gave instructions
What happened in Key v Key?
lacked capacity due to effect of grief on mental state
What was the Golden rule in Kenward v Adams?
elderly/seriously ill = instruct medical practitioner assessment + contemporaneous record
* Not legal obligation, best practice
Who holds the burden of proof for capacity?
The profounder of the Will
What is the presumption for capacity?
Will is accpeted if appears rational/duly executed
What must happen if someone disputes testamentary capacity?
Sufficient evidence to raise doubt
Profounder then proves Banks v Goodfellow
What are the rules for a s18 MCA statutory Will?
o Grounds to diverge from existing testamentary position
o Best interests
What are the two intentions that form knowledge and approval?
- General intention - disposes of property and take effect on death.
- Specific intention – Particular Will they are signing
Where is there no presumption of knowledge and approval?
o Blind/illiterate
o Signed by someone on behalf
o Suspicious circumstances
What is needed if there is no presumption of knowledge and approval when submitting for probate?
Affidavit of knowledge
What was the test in Re Edwards for undue influence?
- Where Testator coerced into making Will/particular terms against judgement/true intentions
- Beyond persuasion – ties of affection/pity for future destitution. Judgement is ‘convinced’
What happens if a Will was unduly influenced in part?
Remainder may be given effect provided omissions don’t upset whole tenor of what remains
Who has the burden of proof when proving undue influence?
Person making allegation, requires court evidence
“facts inconsistent with any other hypothesis”
What is relevant/not relevant when showing undue influence?
Relevant - physical/mental strength
Irrelevant - fairness
What are the s9 requirements?
(a) writing, signed by T/other person in presence by his direction
(b) appears T intended by signature
(c) 2 or more witnesses
(d) each witness either
(i) attests and signs or
(ii) acknowledges T’s signature
Who cannot act as a witness?
Minor
Blind
Drunk
Unsound Mind
What is an attestation clause?
Describes circumstances under which the Will was executed
What happens if there is no attestation clause/poorly drafted?
Affidavit of due execution sworn by witnesses
What does s15 Wills Act say?
Any gifts to attesting witnesses/spouses are void
What does s28(4)(a) Trustee Act say?
s15 doesn’t apply to remuneration for professional executors
If a beneficiary is a witness and can’t inherit, what may still be valid under s15?
They can still act as executor
When is s15 disregarded?
If there were 2 other witnesses or
Subsequently confirmed by a properly executed codicil
