Workshop 8: Wills - Validity

Question 1

What are the four legal requirements int he creation of a valid will?

Answer 1

1. Testator must be 18 or over
2. Testamentary capacity
3. Knowledge & Approval
4. Formal requirements/ s9 Wills Act 1837

Question 2

What is the exception to the requirement of a testator being 18 or over?

Answer 2

Those in military service

Question 3

What does ‘testamentary capacity’ refer to generally?

Answer 3

Being ‘mentally capable’ of making a will

Question 4

What four things must a person possessing ‘testamentary capacity’ be able to do according to Banks v Goodfellow?

Answer 4

1. Understand the nature of the act and its effects
2. Appreciate the extent of property that they are disposing
3. Understand and appreciate moral claims to which they ought to give effect to
4. Not suffer disorder of the mind that perverts their sense of right)

Question 5

TRUE OR FALSE

A testator must be able to understand every detail of the effects of the will and the nature of the act

Answer 5

False

• They must understand the broad effects only

Question 6

Can a testator suffering from insane delusion have ‘testamentary capacity’? Explain

Answer 6

Yes

The delusion must be unconnected with and has no effect on the terms of the will

Question 7

When must the testaor have ‘testamentary capacity?

Answer 7

When the will is executed

Question 8

What three conditions form the exception available of the general rule that the testator must have testamentary capacity at the time the will is executed for the creation of a valid will according to Parker v Felgate?

Answer 8

• They must have had testamentary capacity at the time they gave instructions
• The will was prepared in accordance with the above instructions
• At the time of execution, testator understood they were signing a will for which they had previously given instruction

Question 9

What different thing must be considered when assessing a testators ‘testamentary capacity?

Answer 9

• Mental health conditions
• Effect of depression
• Intermittent capacity (e.g., dementia)
• Illness

Question 10

What is ‘the golden rule’?

Answer 10

States when taking instructions for a will from an elderly or seriously ill client, a medical practitioner should be instructed to assess their ‘testamentary capacity’

Question 11

Is ‘the golden rule’ legally obliged?

Answer 11

No - considered best practice

Question 12

What must someone challenging the validity of one’s will on the grounds of lack of capacity provide?

Answer 12

Evidence sufficient to raise doubt

Question 13

Who does ‘the burden of proof’ to prove capacity lie with regarding capacity?

Answer 13

Propounder of the will (usually executor)

Question 14

When can capacity be presumed?

Answer 14

When the will appears rational and has been duly executed

Question 15

When must ‘knowledge and approval’ be present when generating a valid will?

Answer 15

At time of execution

Question 16

What exception applies to the general rule for the presence of ‘knowledge and approval;’ when generating a valid will?

Answer 16

Exception in Parket v Felgate?

Question 17

What three steps does the legal requirement of ‘knowledge and approval’ require a testator to take in the generation of a valid will?

Answer 17

1. Read their will
2. Understand the will
3. Intend to give effect to its terms by signature

Question 18

When can ‘knowledge and approval’ be presumed in the generation of a valid will?

Answer 18

If the testator had testamentary capacity and the will was executed in accordance with s 9 of the WA 1837

Question 19

Which three scenarios do they courts submit that there is no presumption of ‘knowledge and approval’ of a validly executed will?

Answer 19

1. Testator is blind or illiterate (i.e., unable to read the will)
2. The will was signed by someone on behalf of testator
3. Suspicious circumstances (e.g., will was prepared by someone who received significant benefit from it)

Question 20

What is the purpose of ‘the attestation clause’?

Answer 20

Explains the circumstances under which the will was executed

Question 21

When would an ‘affidavit of knowledge and approval’ be required when submitting will to probate?

Answer 21

When…
- No presumption of knowledge and approval
- Attestation clause does not address knowledge and approval

Question 22

Why is one’s will invalid when made under influence or duress?

Answer 22

Because it does not reflect the testator’s true intention

Question 23

What are the some of key principles concerning ‘undue influence’ set out by Re Edwards?

Answer 23

1. Undue influence - where testator is coerced into making a will or including particular terms contrary to their true intention
2. Undue influence goes beyond persuasion
3. Burden of proof lies with person making allegation
4. Court requires evidence of undue influence

Question 24

Which s of the Will Act is a part of the legal requirements of executing a valid will?

Answer 24

S9

Question 25

When are gifts that are intended for an attesting witness or their spouse void?

Answer 25

When a beneficiary or the beneficiary’s spouse acts as a witness