Wills: Validity

Question 1

What are the requirements to make a valid will?

Answer 1

• Must be over 18 (except those in military service)
  And have:
• testamentary capacity
• knowledge and approval
• formal requirements of 29 Wills Act 1837

Question 2

What are the requirements for testamentary capacity?

Answer 2

Set out in Banks v Goodfellow:

1. Understand the nature of the act and its effects
   - understand they are signing a document that takes effect on death and disposes of their property but need not understand every detail
2. Appreciate the extent of the property of which they are disposing
   - should have a general recollection of what they own and approximate value of their estate and assets
   - need not recall every item or recall precise value of each.
3. Appreciate any moral claims and have no mental impairments
   - appreciate anyone to whom they may feel obligated to leave money (children)
   - can have impairment but fine to have one if they still understand the will

Question 3

When must a testator have testamentary capacity?

Answer 3

At the time the will is executed!

Exception: Parker v Felgate

Question 4

Parker v Felgate

Answer 4

This is a case which established an exception so that a testator who lacks testamentary capacity at the time of execution can still make a valid will provided they:
- Had testamentary capacity at the time they gave instructions for the preparation of the will; and
- the will was prepared in accordance with those instructions
- at the time of execution the testator understood they were signing a will for which they had previously given instructions

may apply where capacity fluctuates over time or an unexpected event occurs.

Question 5

What is the golden rule?

Answer 5

The golden rule states that when taking instructions from a client who is elderly or seriously ill a medical practitioner should be instructed to make an assessment of the testator’s capacity and a record of the assessment and its conclusions should be made.

Not a legal obligation but is considered best practice.

Question 6

Presumption of capacity

Answer 6

Low threshold to satisfy Banks v Goodfellow.

Capacity will be presumed if the will appears rational and has been duly executed.

Anyone who wishes to challenge this must provide evidence to raise doubt. If the presumption is rebutted the the burden of proof will shift to the propounder of the will to demonstrate the testator satisfied Banks v Goodfellow.

Question 7

Statutory Wills

Answer 7

The court can authorise the execution of a will on behalf of someone who lacks capacity.

The court must be persuaded that:
- there are grounds to diverge from existing position (intestacy or significant change)
- it is in the person’s best interest to do so

Question 8

Knowledge and approval

Answer 8

A testator must read their will and understand it, and by their signature intend to give effect to its terms.

A testator must have a specific intention to make the particular will they sign. This means they must know and approve of its contents and understand the choices they have made. Therefore a testator can have capacity but lack knowledge and intention.

Question 9

Presumption of knowledge and approval

Answer 9

Knowledge and approval are presumed if the testator had testamentary capacity and the will was executed in accordance with the requirements of s9 Wills Act 1837.

If there is evidence which raises doubt as to knowledge and approval, the presumption is rebutted and the burden shifts to those seeking to enforce the will.

Question 10

When is there no presumption of knowledge and approval?

Answer 10

• The testator is blind or illiterate
• The Will was signed by someone on behalf of the testator
• There are suspicious circumstances

Question 11

What do you do if there is no presumption of knowledge and approval?

Answer 11

If there is no presumption and the attestation clause does not address this - then you will need an affidavit of knowledge and approval when submitting the Will to probate.

Question 12

Attestation Clause

Answer 12

An attestation clause confirms knowledge and approval. It can be altered to reflect steps taken to ensure a testator fully understands the document they were signing.

e.g. signed by x on behalf of t or read outloud to t by x

Question 13

What is undue influence on a will?

Answer 13

Occurs where the testator is coerced into making a will or including particular terms against their judgement and contrary to their intention. They have no genuinely exercised a choice.

It goes beyond persuasion. Persuasion is not unlawful. The line between them is not always clear.

Question 14

How does one prove undue influence?

Answer 14

Burden of proof lies with the person making the allegation and must have evidence.

Facts must be consistent with any other hypothesis. This is often very difficult to show.

Courts will consider the physical and mental strength of the testator.
Question: did the testator act as a free agent?

Question 15

Effect of undue influence on the will

Answer 15

If a will is made as a result of undue influence or duress it will not be valid because the will does not reflect the testator’s true intention.

May be a particular gift or the will of as a whole.

If part of the will - the rest of the will will remain in effect so long as the omission does not upset the rest of the will.

Question 16

What presumption does a properly worded attestation clause raise?

Answer 16

Will raise a presumption that the will was executed with the requirements of s9 Will Act 1837 (presumption of due execution).

Can also raise a presumption of knowledge and approval.

Question 16

Section 9 Wills Act 1837

Answer 16

A) In writing and signed by the testator or by someone else in his presence and by his direction

B) The testator intended for the signature to take effect (usually at the end)

C) The signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time;

D) each witness either:
i) attests and signs the will; or
ii) acknowledges his signature
in the presence of the testator (but not necessarily in the presence of any other witness)

Question 17

Section 15 Wills Act 1837

Answer 17

If a beneficiary or their spouse witnesses the Will, the beneficiary cannot inherit under the Will.
The Will remains valid (but solicitor may be negligent).

If there is a subsequent codicil with different witnesses who are not caught or there are at least two other witnesses not caught by s15 then the effect of s15 can be disregarded.