Wills: Validity Flashcards
What is meant by testamentary freedom?
A testator can leave property to whomever they choose
Cf other jurisdictions which have forced heirship
Can a minor make a will?
No, testator must be 18 or over
Is there specific wording or form required for a will?
No
What are the 3 legal requirements?
- Testamentary capacity
- Knowledge and approval
- Formal requirements (s9 Wills Act
Is a will still valid even if appointment of executors and distribution of gifts fails (e.g. divorce)?
Yes!
- Administrators apply through NCPR 20
- Distribution according to intestacy rules
What is meant by testamentary capacity?
Testator is mentally capable of making a will
What is the common law test for testamentary capacity?
Banks v Goodfellow
4 things
A testator must:
- Understand the nature of the act and its effects
- Appreciate the extent of the property they are disposing
- Understand and appreciate moral claims to which they ought to give effect
- Have no disorder of the mind that perverts their sense of right/prevents exercise of natural faculties in disposing of property by will
Must ask questions to establish this
What is the nature of the act that the testator must appreciate?
They are signing a document that takes effect on death and disposes of their property
Must the testator understand every little detail for the ‘nature of the act’ requirement?
No - understanding broad effect is fine
To what degree should a testator ‘appreciate the extent of the property’ they are disposing?
A general recollection of what they own and appreciate the value of estate/assets
Not required to recall every item/know precise value
What are the ‘moral claims’ that a testator must be able to appreciate?
Anyone to whom they owe a moral responsibility when deciding who is to benefit and to what extent
Do the people associated with the ‘moral claims’ requirement have to be left something in the will?
No
What constitutes ‘disorder of the mind’ and will this always invalidate capacity?
Insane delusions affecting their judgements generally or re specific dispositions. Will still have capacity if delusion unconnected with/has no effect on will
When must testator have testamentary capacity?
At the time the will is executed
When can a testator who lacks testamentary capacity at the time of executon still make a valid will?
Parker v Felgate
Provided:
- The will was prepared in accordance to instructions given when testator had capacity
- Testator understood when they signed for will based on previous instructions
Applies where T’s capacity fluctuates over time/unexpected event occurs
What is meant by intermittent capacity or a temporary lack of capacity?
- Intermittent capacity - e.g. someone with dementia can have ‘lucid days’ where capacity can be satisfied
- Temporary lack of capacity as a consequence of life event e.g. grief after death of relative
What is the ‘golden rule’?
A medical practicioner should be instructed to make an assessment of capacity if a client is elderly/seriously ill and a contemporaneous record of the assessment should be made
Is not a legal rule; only best practice
Will a failure to comply with the golden rule demonstrate bad practice?
Not automatically - there are practical complications (e.g. finding a practicioner)
Does following the golden rule confirm capacity?
No - the purpose is to reduce likelihood of later disputes
When will capacity be presumed?
Will on the face of it appears rational and has been duly executed
With whom does the burden of proof lie with for capacity?
The propounder of the will (person who admits) - but presumption will operate
What must a person do if they want to challenge the validity of the will on the grounds of capacity?
Provide evidence sufficient to raise doubt
On which burden reverts to propounder to demonstrate capacity
NB person can lack ability to manage own affairs and require day-to-day help and still have capacity ( - so challenging can be difficult