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
What happens when the common law test for capacity clashes with statute (i.e. Mental Capacity Act)?
Common law test prevails
What should a solicitor do if a client who lacks capacity instructs them to make a will?
Not accept their instructions as they cannot make a valid will
What can the court do for an adult who lacks capacity to make a will?
Authorise the execution of a will on their behalf where they are persuaded there are grounds to diverge from existing testamentary posision as it is in the person’s best interests to do so
What would constitute ‘best interests’ in the scenario of court authorisation?
- Intestacy rules would otherwise apply (a will was not made)
- A change in circumstances means a testator would have likely changed their position
Can you lack knowledge and approval if you satisfy the test for capacity?
Yes!
What does ‘knowledge and approval’ mean?
Testator must have specific intention to make the particular will they will sign; must know and approve of its contents and understand choices they made
What if the testator lacks knowledge and approval at the time the will is executed?
The same exceptions as capacity apply (had it when they gave instructions, was prepared in accordance with those etc.)
What must a testator do practically to show knowledge and approval?
Read their will and understand it and by their signature give effect to its terms
When is knowledge and approval presumed?
If the testator has testamentary capacity
Rebutted if evidence raising doubt - burden of proof shifts
In what 3 circumstances will there not be a presumption of knowledge and approval?
- Testator was blind or illiterate
- Will was signed by someone on behalf of the testator
- There are suspicious circumstances (will prepared by key B or their relative)
If the presumption does not apply, how can the risk of having to prove that it was present at a later date be mitigated?
Attestation clause can be drafted to reflect the steps taken
Attestation clause describes circumstances in which will signed
E.g. for blind person: Signed by A in the presence of both of us, then by us in the testator’s presence after this document had been read over by B to the testator when the testator seemed thoroughly to understand and approve the contents
What is needed when submitting the will to probate if there is a) no presumption of knowledge and approval and b) the attestation clause does not address this?
An affidavit of knowledge and approval
What happens if a will is made under undue influence, but the testator had knowledge and approval?
Not valid; does not reflect testator’s true intention
If only part of the will was made as a result of undue influence, can the remainder be given effect to?
Yes - provided that omissions do not “upset the whole tenor of what remains”
Will persuasion count as undue influence?
No - undue influence only occurs where they do not genuinely exercise choice and have surrendered to pressures they could not withstand
Are physical/mental strength and fairness relevant when determining how much pressure needed to overbear will of testator?
Physical and mental strength is; a weak or ill testator might be more susceptible
Fairness irrelevant
Is it enough for someone who alleges undue influence to show that the facts are consistent with the hypothesis of undue influence?
No! Must be shown that facts are inconsistent with any other hypothesis
Whether undue influence occurred is a question of fact
What are the formal requirements in s9?
2
- Signed in writing by testator (or someone in his presence by his direction) - signature intends to give effect to will
- Signature made/acknowledged in presence of 2 or more witnesses present at the same time each of whom attests and signs will/acknowledges signature in testator’s presence
‘Acknowledge’ means the witnesses don’t actually have to see the testator sign the will
Can a ‘mark’ constitute a signature? Can someone else sign on their behalf?
- Yes but signature preferable
- Yes on their direction
Should the signature be handwritten, typed or printed?
Either
How can it be made apparent that the testator intended by his signature to give effect to the will?
By signature being at the end - beginning or middle can be problematic
What are the requirements for the witness(es)?
- Must be 2
- Both physically/mentally present
- Must not be a minor, blind, drunk or of unsound mind
- Full name, address and occupation noted
Does a testator absolutely have to sign the will in person?
No - they can acknowledge the signature of a person who signed on his behalf
Otherwise must sign in person
Does a witness have to know the terms of a will?
No
Do the witnesses have to sign/acknowledge in the presence of another witness?
No - only presence of testator
What does an attestation clause do?
Describes the circumstances under which the will was executed
Is there a legal obligation to include an attestation clause or a specific form of it?
No - but properly drafted attestation clause raises presumption that will was executed in accordance with requirements
What will be required in the absence of/poorly worded attestation clause?
An affidavit of due execution sworn by the witnesses
As proof of proper execution
What should be done where the will is executed in special circumstances?
E.g. will signed on behalf of testator, testator is blind etc.
Attestation clause amended to reflect these special circumstances and provide evidence of requisite knowledge and approval
Failure can constitute negligence - should do in office for oversight
What is the effect if a beneficiary of the will acts as a witness?
They (and their spouse) cannot inherit under the will; gifts to attesting witnesses are void
If a witness is denied inheritance under the will, does their appointment as an executor remain valid?
Yes
Solicitor can be negligent though
What is the effect of s15 (a witness cannot inherit under a will) on a professional executor, who can charge for their services, if they witness a will?
Will not apply to the remuneration they receive for acting in this role
In what two situations can the effect of s15 (a witness cannot inherit under a will) be disregarded?
- At least 2 other witnesses are not caught by s15
- The will is subsequently confirmed by a properly executed codicil
