Wills: validity Flashcards
What are the requirements for a valid will?
-Testator must be aged 18 or over
-Testamentary capacity
-Knowledge & Approval
-Formal requirements (S9 Wills Act 1837)
What is the common law test of testamentary capacity as set out in Banks v Goodfellow (1870)?
-Understand nature of the act and its effects
-Appreciate the extent of the property they are disposing of
-Understand and appreciate any moral claims & have no disorder of the mind
What is the exception in Parker v Felgate (2005)?
A testator who lacks testamentary capacity at the time of execution can still make a valid will if:
-they had testamentary capacity at the time they gave instructions
-the will was prepared in accordance with those instructions
-at the time of execution, they understood they were signing a will
What is the golden rule in Kenward v Adams (1975)?
When taking instructions for a will 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 a conclusion should be made.
What does knowledge and approval mean?
A testator must have a general intention to make a testamentary document which disposes of their property and should take effect following their death.
A testator is also required to 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.
Is knowledge and approval presumed?
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.
In what circumstances is there no presumption of knowledge and approval?
-The testator is blind or illiterate
-The will was signed by someone on behalf of the testator
-There are suspicious circumstances
What is the effect of undue influence on a will?
Where the whole of the will was made as a result of undue influence, the whole will is invalid.
Where part of the will was made as a result of undue influence, the remainder may be given effect to provided that the omissions “do not upset the whole tenor of what remains”.
What does S9(a) Wills Act 1837 require of a will?
‘It is in writing, and signed by the testator, or by some other person in his presence and by his direction’.
What does S9(b) Wills Act 1837 require of a will?
‘It appears that the testator intended by his signature to give effect to the will’.
What does S9(c) Wills Act 1837 require of a will?
‘The signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time’.
What does S9(d) Wills Act 1837 require of a will?
‘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’.
Both witnesses must sign the will in front of the testator, but it is not necessary for each witness to also sign in front of each other.
What is an attestation clause and is there a legal obligation to include one in a will?
An attestation clause describes the circumstances under which the will was executed, for example:
-Signed by the above named (testator) in our joint presence and then by us in his/hers
There is no legal obligation to include an attestation clause but a properly drafted attestation clause raises a presumption of due execution.
What does S15 Wills Act 1837 provide for?
Under this section any gifts to an attesting witness (or their spouse) are void. Therefore, if a beneficiary, or their spouse at the time of execution, acts as a witness, the beneficiary cannot inherit under the will.
The will remains valid but a solicitor may be negligent if they do not provide advice on the effect of this provision.
Does the effect of S15 Wills Act 1837 apply if there are at least two other witnesses not caught by S15?
If there are at least two other witnesses not caught by s15, or if the will is subsequently confirmed by a properly executed codicil; the effect of s15 can be disregarded; the will would be properly executed without the beneficiary (or their spouse) witnessing the will.
