Wills - WS1 (Formalities)

Question 1

What passes outside of the will and intestacy rules?

Answer 1

Joint property (as beneficial joint tenants) passes outside of the will to the other JT via survivorship

Insurance policies – benefit of the property passes to the family

Pension benefits (employee benefits) – pass on death independently of the terms of the will and any intestacy rules

Trust property – equitable interest as a beneficiary of a trust (come to an end on the beneficiary’s death) e.g. life interest – they will pass under the terms of the trust.

Question 2

What is a specific gift?

Answer 2

A gift of a specific item or items which the testator owns.

Question 3

What is a general gift?

Answer 3

Gift of an item or items corresponding to a description. If the testator doesn’t own the items at death, the executors must obtain the item(s) using funds obtained from the estate.

An example would be ‘I give 100 shares in X plc to my son’. If the testator does
not own 100 such shares at his death, then they must be purchased. General legacies are rare unless they consist of gifts of money.

Question 4

What is a pecuniary gift?

££££

Answer 4

This is a gift of money. This gift will usually be general, but could be demonstrative, or possibly even specific. For example ‘I give the £100 held in the safe in the study’

Question 5

What is a residuary gift?

Answer 5

Gifting the ‘rest’ of the money and property. ‘The residue’. A residuary gift comprises all the money and property left after the testator’s debts, the expenses of dealing with the estate and other gifts made under the will have all been paid. It is a sweeping up provision but is usually the most substantial gift in the will.

Question 6

What are the requirements of a valid will?

CIF

Answer 6

1) Capacity
2) Intention
3) Formalities

Question 7

What is capacity?

Answer 7

General Rule
-Must be 18+
-Must have mental capacity (must have the requisite mental capacity at the time of the will)

Exception
-Parker v Felgate – a will can be valid if the testator gives valid instructions to the solicitor (even if they lose capacity after)

Question 8

What is the golden rule?

Answer 8

-If the testator lacks capacity – the will is void.

-A solicitor should follow the ‘Golden Rule’ and ask for a medical report from the doctors confirming that the testamentary capacity and ask the doctor to witness the will (and keep a record on file).

-Solicitor should also record their own view of the testator’s capacity in a file note and keep written evidence on the file in case someone challenges the validity of the will after the testator’s death.

Question 9

What is the burden of proof for capacity?

Answer 9

-The person that challenges the will needs to prove that they lacked capacity

Question 10

What must the testator understand when doing a will?

Answer 10

-The nature of their act and its broad effects (the fact that they are making a will which will have an effect on their death)

-The extent of their property (although not necessarily recollecting every single item)

-The moral claims they ought to consider (even if they decide to reject such claims and dispose of their property to other beneficiaries)

Can’t be suffering from an insane delusion

Question 11

What is the presumption of capacity?

Answer 11

Capacity is presumed, executors do not have to prove capacity because there is a presumption that the testator satisfied the mental capacity test.

Presumption applies if
1) the will is rational on its face
2) testator showed no evidence of mental confusion before making the will

If someone challenges the will – burden of proof shifts to the person that is challenging the capacity.

Question 12

What is intention?

Answer 12

-When the will is signed the testator needs general and specific intention.

-They must know and approve contents at the time the will is executed

Presumption – intention is presumed, the testator who has capacity and has read and executed the will is presumed to have the requisite knowledge and approval

Question 13

What are the exceptions to intention?

Answer 13

Exception:

1)Testator is blind, illiterate and did not sign personally. HMRC will require evidence.

2)Suspicious circumstances – e.g. the will is prepared by a beneficiary, close relative. Burden of proof - is on the person putting forward the will. Executor to remove suspicion by proving that the testator did know and prove the contents of the will.

Question 14

What happened in the case of Gill v Woodall?

Answer 14

The Court of Appeal found that the presumption did not apply where the beneficiary played no part in the preparation of the will.

FACTS: Mrs Gill, a Yorkshire farmer, who was on excellent terms with her daughter and grandson, **left everything to the RSPCA **after leading her daughter to believe that she would inherit everything.

Mrs Gill had gone with her husband to see a solicitor in order that they would both make wills. She suffered from a severe anxiety disorder and agoraphobia, the result of which was that she would have experienced panic when at the office of the solicitor.

There was no evidence that she had read the will or had it explained to her, which meant that the Court of Appeal held that the circumstances of the case were so unusual that the presumption did not apply

Burden of proof- the burden of proof lay with the RSPCA to establish that Mrs Gill had known and approved the contents of her will but they failed to discharge this burden. The will was declared void and Mrs Gill’s daughter inherited under the intestacy rules.

Question 15

What is force, fear, fraud, undue influence?

Answer 15

Force– actual / threatened injury
Fraud– being misled
Undue influence– testator’s choice overcome by intolerable pressure, coercion, duress.

Question 16

Who cannot be a witness?

Answer 16

-Witness cannot be a beneficiary, spouse / civil partner or partner of the beneficiary

REMEMBER COHABITANT IS NOT A SPOUSE SO THEY CAN WITNESS

Question 17

What is mistake?

Answer 17

The presumption of knowledge and approval does not apply if all or part of the will was included by mistake.

-Any words included without knowledge and approval of the testator will be omitted form probate.
Actual mistake – absence of knowledge and approval.
Misunderstanding – of what things mean and the true legal meaning of the words used in the will.

Solicitor needs to explain the contents of the will always.

Question 18

What are the formalities of creating a will?

Answer 18

S9 of the Wills Act:

A) Must be in writing
Any kind of writing, handwriting, typewriting, brail etc.

B) Signed by Testator
Any kind of signature is acceptable ‘your loving mother’ was held to be valid because the signature was sufficient to identify the testator
- As long as it is possible to identify who the testator is (crosses and thumbprints)

Another person can sign on behalf of the testator behalf, as long as its in the testator’s presence and at their direction
-Testator must give positive and discernible direction (verbal / non-verbal) that they wish to sign on their behalf and be present when they do so.

Testator by his signature intended to give effect to the will
-Signing at the end of the will
-If the signature is elsewhere it still can pass

c) Signature must be witnessed 2 WITNESSES
Testator must be made / acknowledged in the presence of two witnesses
Two witnesses:
-must be present at the same time
-must sign together/independently in front of the testator

Mentally present – witness must be aware that the testator is signing a document. They do not have to know that it is a will

Physically present – they must see / be able to see that the testator signing.

d) Each witness either attests and signs the will no form of attestation is necessary

By signing, the witness is confirming that they witnessed the testator’s signature
Standard – ‘no form of attestation shall be necessary’ (Attestation clause)
Confirming that the signature of the will has been witnessed, if there is an attestation clause there is a presumption that the will has been executed in accordance with S9 ‘presumption of execution’.

Question 19

What is the general rule regarding the burden of proof of due execution?

Answer 19

General rule- person who is asserting a will is valid to prove it. However, in most cases, no proof is necessary because there is a presumption of due execution.

Question 20

What about Covid and remote witnessing?

Answer 20

‘Presence can be video and online’ but must be physically signed by the testator then posted to the witness who must also physically sign it in virtual presence of each other.

-Will is not valid unless signed by 2 witnesses and dated.

Question 21

What is the presumption of due execution?

Answer 21

If the will includes a clause which recites the s9 formalities were observed, such as ‘signed by the testatrix in our joint presence and then by us in hers’ such clause is an attestation clause.

Question 22

What if a will doesn’t contain an attestation clause?

Answer 22

HMCTS will require an affidavit of due execution (or witness statement verified by a statement of truth) from a witness of any other person who was present during the execution, or failing that, an affidavit of handwriting evidence to identify the testator’s signature, or they will refer the case to the judge (all which will involve time and expense).

Question 23

How is undue influence proved in relation to a will? Very difficult to challenge.

Answer 23

-They will need to collect evidence from family, friends and carers It is such a serious allegation that a claimant who fails to substantiate their claim will be penalised in costs

-They will receive a penalty if they fail to prove this (up to the amount in the will).

-Undue influence is coercion rather than persuasion.

Question 24

What is a demonstrative gift?

Answer 24

This is a gift that is general in nature but is directed to be paid from a specific fund, for example.

I give £500 to X to be paid from my Nationwide savings account If the account exists at the date of the death and contains £500 or more, the legacy is paid from the account and is classified as specific. If there is no account (or if it contains less than £500), the legacy is paid, in whole (or in part), from the rest of the estate and to that extent is classified as general.