Wills - Validity And Entitlement Flashcards
How do property pass under will and intestacy?
If jointly owned house, it will NOT< becuase it goes to the surviving tenant through survivorship
If insurance policy, it goes to PR, unless specifically for someone - written on trust for someone else.
Pension benefits: lump sum, paid by trustees of pension fund to members of family or dependents.
Trust property: if equitable interest, comes to an end (life interest), or devolved according to terms of trust.
What is a revocation clause?
Revokes prior wills before it. Important to say at beginning of will, to make sure no others have effect
What are the different types of gifts that can be found in a will?
Specific gift (specific item)
General gift (if general item, can find item and source it through funds from estate)- purchase shares etc)
Demonstrative gift (general in nature, but is for a specific fund (i give X 500, from my nationwide savings account)
Pecuniary gift (gift of money)
Residuary gift (leaves the rest of estate to X)
What are the 3 requirements for a valid will?
Capacity
Intention
Formalities
What is the test for capacity for a valid will?
An individual must be age 18 or over, and mist have requisite mental capacity.
Testator must understand nature of act, extent of property, and moral claims.
Must have capacity at the TIME they execute thier wills.
What is an exception to the capacity rules to make a valid will?
Parker v Felgate
A will can be valid if the testator has capacity when giving instructions for the will, even if they lose capacity by the time the will is executed. Is valid if instructions were re given to solicitor, who prepared the will with these instructions.
What is the golden rule, for the capacity for a valid will?
If the testator lacks capacity, the will is VOID.
A solicitor preparing a will for a testator whose mental state is in DOUBT, should follow gate golden rule: should ask a medical practice r to provide a written report confirming that the testator has testamentary capacity.
Who has the burden of proof for the capacity of the testator for a valid will?
General rule ist hat for the person who s asserting that a will is valid to prove it.
HOWEVER, huge burden on executors. Therefore, the question of whether the will is value arises after testators death when executors apply for grant of probate.
What is the presumption of capacity?
Despite the general rule, executors do not usually ave to prove capacity, becuase there is a presumption that the testator satisfies the mental capacity test.
What is the meaning of intention for the validity of a will?
When the will is signed, the testator must have both general and specific intention.
Means the testator must intend to make a will and must intend to make that particular will.
Who has the burden of proof for intention of the testator during will making ?
General rule is that it is for the person asserting that a will is valid, to PROVE IT. Hwoever, it is again not necessary to prove it, becuase the presumption of knowledge and approval arises.
What is the presumption of knowledge and approval?
Testator who has capacity and has read and executed the will is presumed to have requisite knowledge and approval.
When does the presumption of knowledge or approval NOT apply?
When the testator is blind/illiterate/not signing personally
Suspicious circumstnaces
Force, fear, fraud, undue influence, mistake.
What are the formalities needed for execution of will?
Section 9 of the wills act
It is in writing, signed by testator or by someone else in presence and direction
Appears that the testator intended by his signature to give effect
Signature is made or acknowledged by testator in presence of 2 or more witnesses at the same time, (mental and physical) and,
Each witness attest and signed the will and acknowledges the signature, in the presence of the testator.
What is the procedure for remote witnessing?
Witnessing per-recorded videos NOT permitted, must be live.
Witnesses and testator can be at differnet locations
Testator must physically sign will, electronic are not permitted.
Will must then be posted to witnesses, who must physically sign the wll int he virtual presence of the testator.
What are privileged wills?
One exception to the rule of s9.
Actual military service or by mariner or seaman can be made in any form - including a mere oral statement.
Only requirement is that the testator intends to dispose of his property after his death.
Who has the burden of proof of correct formalities of will?
Person who is asserting a will is valid, has to prove it.
What is the presumption of due execution?
Arises if the will includes a clause that recites that s 9 formalities were observed. This is an attestation clause.
The presumption means that anyone challenging the validity of the will, has the burden of PROVING this is the case.
What is an affidavit of due execution?
HMCTS will require this (witness statement verified by statement of truth), from witness. To ensure that the will was correctly formed.
What are the 2 basic presumptions when interpreting a will?
Non-technical words bear their ORDINARY meaning.
Technical words are given their technical meaning.
These can be rebutted from the will if it is clear they meant something different.
How is the testators intention established?
By looking at the words in the will itself. Basic rule is that the court is not prepared to consider other evidence.
What are the limited circumstnaces in which the court will look at external or extrinsic evidence in order to ascertain testators intentions?
Allows extrinsic evidence, if the will is meaningless, languages used is ambiguous on the face of it, or other evidence shows ambiguous in light of surrounding circumstances.
What is s 21 of Administration of Justice Act?
Extrinsic evidence can be used to interpret testators intentions.
2 step process. Case must first come within 1 of 3 options, then court will look at extrinsic evidence.
What is rectification?
Changing the will. The court has NO POWER to rewrite the will so that is accords with opinion of other, no power to write a differnet will.
Court DOES however, have power to rectify a will. This arises where the testators intentions are clear, but wording of the will does not carry them into effect.
