Wills validity Flashcards
Testamentary capacity?
- Must be mentally capable of making a will.
Key case Banks v Goodfellow 1870 – common law test provides that a testator must: - Understand the nature of the act and its effects – must understand they are signing a document that takes effect on death and dispose of their property
- Appreciate the extent of property they are disposing – general recollection of what they own and appreciate approximate value of their estate
- Understand and appreciate the moral claims to which they ought to give effect – no requirement to give to those nearest in kin
- Timing requirements – MUST have capacity at time the will is executed
Testamentary capacity - exceptions and presumption?
- Parker v Felgate – exception where will be made when they had capacity and executed when they lacked capacity.
- This exception can apply when they have fluctuating capacity.
- Golden rule – is when taking instructions for a will who is elderly or seriously ill a medical practitioner should be instructed to make an assessment of testator’s capacity.
- Presumption of capacity – burden of proof lies with person seeking to admit the will to probate (executor) however its presumed if the will seems rational.
- If person lacks will – they cannot make a valid will, it’s possible for court to authorises execution of a will on behalf of an adult who lacks capacity
Knowledge and approval?
Knowledge and approval
- Must have a general intention to make a testamentary document which disposes of their property and should take effect following their death BUT ALSO OF THE SPECEFIC PROPERTY
- Presumption – its presumed if will is compliant with S9 WA
- HOWEVER, IF it challenged, burden of proof shifts to person trying to enforce the will.
Knowledge and approval - exceptions?
- No presumption if: person is blind or illiterate, was signed by someone on behalf, or suspicious circumstances.
- If no presumption AND attestation clause (which explains the circumstances under which the will was executed does not address it) then an affidavit would be needed when submitting a will to probate.
- Undue influence and duress – NOT VALID, if it’s only a specific gift the rest of the will can remain valid if the omissions do not upset the whole tenor of what remains.
- Re Edwards – key principles – undue influence occurs when a testator is coerced into making a will, goes beyond persuasion.
- Burden of proof lies with person making the allegation.
Formal requirements of a will - s9 WA?
- In writing
- Signed by testator or by some other person on his direction
- Intended signature to give effect to will
- Made or acknowledge signature by two or more witnesses
- Each witness either attests and signs the will or acknowledges his signature
Attestation clause?
- No legal obligation
- A properly drafted attestation clause raises a presumption that the will was executed in accordance with the requirements of s9 WA
- SECTION 15 WA – any gifts to an attesting witness or their spouse are void. Will remains valid but solicitor may be negligent.
- If there are at least two other witnesses not caught by s15 or confirmed by a codicil the effect of s15 can be disregarded.
Will amendment? Manuscript alterations?
- Should be advised to make a new will rather than making a codicil or hand amendments to their existing will
- Law governing effect of manuscript amendments is complex and risk that it still won’t give desired result.
- Alterations made by another person are invalid.
- Alterations are governed by s21 WA
- ‘No alterations shall be valid EXCEPT so far as the words before such alteration shall not be apparent, unless the alteration shall be executed in like manner as requires for the execution of will’
Types of amendement?
obliteration, interlineation, or other alterations made…’
- Obliteration – where the text has been crossed out in such a way that the original text is illegible
- Interlineation = where writing has been inserted or to add something that was omitted
- Other alterations – additions, or a strike through
Post-execution alterations?
Made after the execution shall be valid or have any effect’
- General rule is amendments made after will is executed is invalid.
- If alteration was made before with testators’ knowledge and approval then it would be valid.
Attested alterations?
- If an alteration is executed like a will –the alteration is valid. Like signed by two witnesses and testator
Exceptions to general rule that unattested alterations are invalid?
Blank space – where a blank space has been completed there is a presumption that this occurred before the execution
- Obliteration – if original wording is not apparent, covered or cut out the obliteration Is treated as having been made by testator with an intention to revoke and WILL BE EFFECTIVE.
o Conditional revocation – if testator made an obliteration with a conditional intent to revoke the gift, then extrinsic evidence is permitted. – a fresh copy of will containing original wording would be admitted to probate. – usually used where testator tries to substitute with another figure but it failed. COURT can find that the testator only intended to revoke original gift if the substation was successful. – but if made after execution then is unsuccessful.
What is a codicil?
codicil is a formal testamentary document that amends an earlier will, intended to be read together.
- Must have testamentary capacity
- Knowledge and approval
- And comply with s9 WA
When are they appropriate
- Created new provisions in a will
- Edit existing provisions
- Revoke provisions
Drafting pitfalls of codicils?
- Not expressly noting a change to testator’s name or address
- Not affirming the parts of the original will remain unchanged
- Missing or incorrect cross reference to the date
- Effect of codicil does not make sense in conjunction
- If there are no express words of revocation there is a presumption that original will terms remain where possible – codicil will only revoke earlier will where there is inconsistency between them.
Republishing a will?
- When a testator executes the codicil, this acts to republish the will
- This gives the effect that the will has been executed on the date on which the codicil was executed
- Date of codicil would be used to determine whether any alterations were after date.
Correcting problems by codicil?
- As the execution of a codicil re-executes the will the codicil can correct problems with it.
- Like if a beneficiary or their spouse witnessed a will s15WA has the effect of denying the beneficiary their inheritance. – but if a codicil is later witnessed by different people the gift under the will can be given effect to.
- S15 WA applies to a codicil to – so cannot have a beneficiary witness.
- If the will contains unattested manuscript amendments which have not bene given effect under s2 WA because they were made after – they can be confirmed by will. – amendments MUST be made before codicil is executed and expressly refer to alterations it confirms.
- If a will was not previously executed with s9 WA – the due execution of codicil can correct that
Revocation and revival - Codicil may revoke only part of an earlier will, or it may be revoking the document in full.4
