Wills: Validity

Question 1

What is meant by testamentary freedom?

Answer 1

A testator can leave property to whomever they choose

Cf other jurisdictions which have forced heirship

Question 2

Can a minor make a will?

Answer 2

No, testator must be 18 or over

Question 3

Is there specific wording or form required for a will?

Answer 3

No

Question 4

What are the 3 legal requirements?

Answer 4

1. Testamentary capacity
2. Knowledge and approval
3. Formal requirements (s9 Wills Act

Question 5

Is a will still valid even if appointment of executors and distribution of gifts fails (e.g. divorce)?

Answer 5

Yes!

• Administrators apply through NCPR 20
• Distribution according to intestacy rules

Question 6

What is meant by testamentary capacity?

Answer 6

Testator is mentally capable of making a will

Question 7

What is the common law test for testamentary capacity?

Banks v Goodfellow

4 things

Answer 7

A testator must:

1. Understand the nature of the act and its effects
2. Appreciate the extent of the property they are disposing
3. Understand and appreciate moral claims to which they ought to give effect
4. 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

Question 8

What is the nature of the act that the testator must appreciate?

Answer 8

They are signing a document that takes effect on death and disposes of their property

Question 9

Must the testator understand every little detail for the ‘nature of the act’ requirement?

Answer 9

No - understanding broad effect is fine

Question 10

To what degree should a testator ‘appreciate the extent of the property’ they are disposing?

Answer 10

A general recollection of what they own and appreciate the value of estate/assets

Not required to recall every item/know precise value

Question 11

What are the ‘moral claims’ that a testator must be able to appreciate?

Answer 11

Anyone to whom they owe a moral responsibility when deciding who is to benefit and to what extent

Question 12

Do the people associated with the ‘moral claims’ requirement have to be left something in the will?

Answer 12

No

Question 13

What constitutes ‘disorder of the mind’ and will this always invalidate capacity?

Answer 13

Insane delusions affecting their judgements generally or re specific dispositions. Will still have capacity if delusion unconnected with/has no effect on will

Question 14

When must testator have testamentary capacity?

Answer 14

At the time the will is executed

Question 15

When can a testator who lacks testamentary capacity at the time of executon still make a valid will?

Parker v Felgate

Answer 15

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

Question 16

What is meant by intermittent capacity or a temporary lack of capacity?

Answer 16

• 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

Question 17

What is the ‘golden rule’?

Answer 17

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

Question 18

Will a failure to comply with the golden rule demonstrate bad practice?

Answer 18

Not automatically - there are practical complications (e.g. finding a practicioner)

Question 19

Does following the golden rule confirm capacity?

Answer 19

No - the purpose is to reduce likelihood of later disputes

Question 20

When will capacity be presumed?

Answer 20

Will on the face of it appears rational and has been duly executed

Question 21

With whom does the burden of proof lie with for capacity?

Answer 21

The propounder of the will (person who admits) - but presumption will operate

Question 22

What must a person do if they want to challenge the validity of the will on the grounds of capacity?

Answer 22

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

Question 23

What happens when the common law test for capacity clashes with statute (i.e. Mental Capacity Act)?

Answer 23

Common law test prevails

Question 24

What should a solicitor do if a client who lacks capacity instructs them to make a will?

Answer 24

Not accept their instructions as they cannot make a valid will

Question 25

What can the court do for an adult who lacks capacity to make a will?

Answer 25

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

Question 26

What would constitute ‘best interests’ in the scenario of court authorisation?

Answer 26

• Intestacy rules would otherwise apply (a will was not made)
• A change in circumstances means a testator would have likely changed their position

Question 27

Can you lack knowledge and approval if you satisfy the test for capacity?

Answer 27

Yes!

Question 28

What does ‘knowledge and approval’ mean?

Answer 28

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

Question 29

What if the testator lacks knowledge and approval at the time the will is executed?

Answer 29

The same exceptions as capacity apply (had it when they gave instructions, was prepared in accordance with those etc.)

Question 30

What must a testator do practically to show knowledge and approval?

Answer 30

Read their will and understand it and by their signature give effect to its terms

Question 31

When is knowledge and approval presumed?

Answer 31

If the testator has testamentary capacity

Rebutted if evidence raising doubt - burden of proof shifts

Question 32

In what 3 circumstances will there NOT be a presumption of knowledge and approval?

Answer 32

• 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)

Question 33

What can remove presumption of knowledge & approval?

Answer 33

Susupecious circumstances
E.g.
* will was prepared and signed in presence of beneficiary;
* testaor had mental health problems;
* testator was pressurised into making thw will, which casts doubt on knowledge & approval

All this removes presumption of knowledge & approval.

Question 34

What if testator is suspected of being bullied/pressured into making the will?

Answer 34

Indicates suspicious circumstances = no presumption of knowledge & approval.

Question 35

If the presumption does not apply, how can the risk of having to prove that it was present at a later date be mitigated?

Answer 35

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

Question 36

i

What if

Question 37

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?

Answer 37

An affidavit of knowledge and approval

Question 38

What happens if a will is made under undue influence, but the testator had knowledge and approval?

Answer 38

Not valid; does not reflect testator’s true intention

Question 39

If only part of the will was made as a result of undue influence, can the remainder be given effect to?

Answer 39

Yes - provided that omissions do not “upset the whole tenor of what remains”

Question 40

Will persuasion count as undue influence?

Answer 40

No - undue influence only occurs where they do not genuinely exercise choice and have surrendered to pressures they could not withstand

Question 41

Are physical/mental strength and fairness relevant when determining how much pressure needed to overbear will of testator?

Answer 41

Physical and mental strength is; a weak or ill testator might be more susceptible

Fairness irrelevant

Question 42

Is it enough for someone who alleges undue influence to show that the facts are consistent with the hypothesis of undue influence?

Answer 42

No! Must be shown that facts are inconsistent with any other hypothesis

Whether undue influence occurred is a question of fact

Question 43

What are the formal requirements in s9?

2

Answer 43

1. Signed in writing by testator (or someone in his presence by his direction) - signature intends to give effect to will
2. 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

Answer is C

‘Acknowledge’ means the witnesses don’t actually have to see the testator sign the will

Question 44

Can a ‘mark’ constitute a signature? Can someone else sign on their behalf?

Answer 44

• Yes but signature preferable
• Yes on their direction

Question 45

Should the signature be handwritten, typed or printed?

Answer 45

Either

Question 46

How can it be made apparent that the testator intended by his signature to give effect to the will?

Answer 46

By signature being at the end - beginning or middle can be problematic

Question 47

What are the requirements for the witness(es)?

Answer 47

• Must be 2
• Both physically/mentally present
• Must not be a minor, blind, drunk or of unsound mind
• Full name, address and occupation noted

Question 48

Does a testator absolutely have to sign the will in person?

Answer 48

No - they can acknowledge the signature of a person who signed on his behalf

Otherwise must sign in person

Question 49

Does a witness have to know the terms of a will?

Answer 49

No

Question 50

Do the witnesses have to sign/acknowledge in the presence of another witness?

Answer 50

No - only presence of testator

Question 51

What does an attestation clause do?

Answer 51

Describes the circumstances under which the will was executed

For example, ‘Signed by the testator in our joint presence and then by us in his’.

Question 52

Is there a legal obligation to include an attestation clause or a specific form of it?

Answer 52

No - but properly drafted attestation clause raises presumption that will was executed in accordance with requirements

Question 53

What will be required in the absence of/poorly worded attestation clause?

Answer 53

An affidavit of due execution sworn by the witnesses

As proof of proper execution

Question 54

What should be done where the will is executed in special circumstances?

E.g. will signed on behalf of testator, testator is blind etc.

Answer 54

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

Question 55

What is the effect if a beneficiary of the will acts as a witness?

Answer 55

They (and their spouse) cannot inherit under the will; gifts to attesting witnesses are void

Question 56

If a witness is denied inheritance under the will, does their appointment as an executor remain valid?

Answer 56

Yes

Solicitor can be negligent though

Question 57

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?

Answer 57

Will not apply to the remuneration they receive for acting in this role

Question 58

In what two situations can the effect of s15 (a witness cannot inherit under a will) be disregarded?

Answer 58

1. At least 2 other witnesses are not caught by s15
2. The will is subsequently confirmed by a properly executed codicil

Question 59

If the will was signed without complying with s.9 WA because testator did not sign/acknowledge his signature in presence of 2 witnesses. As a result, estate passes on intestancy rules (to parents or siblings etc).

What is the correct grant of probate for estate that parents/siblings will be able to obtain?

Answer 59

If there is no valid will, the correct grant is simple letters of administration.

Question 60

What grant of probate is approrpiate where there is a valid will, but there is no executor who is willing/able to act?

Answer 60

Grant of letters of administration with will annexed

Question 61

If executor is witness to a will, does it make will invalid?

Answer 61

No, it does not make the will invalid and it does not prevent executor from acting.

Question 62

If executor is given a gift in a will, is the will valid?

Answer 62

Yes, a gift can be validly made to executor in a will and gift does not prevent executor from acting.