Workshop 8: Wills - Validity Flashcards
What are the four legal requirements int he creation of a valid will?
- Testator must be 18 or over
- Testamentary capacity
- Knowledge & Approval
- Formal requirements/ s9 Wills Act 1837
What is the exception to the requirement of a testator being 18 or over?
Those in military service
What does ‘testamentary capacity’ refer to generally?
Being ‘mentally capable’ of making a will
What four things must a person possessing ‘testamentary capacity’ be able to do according to Banks v Goodfellow?
- Understand the nature of the act and its effects
- Appreciate the extent of property that they are disposing
- Understand and appreciate moral claims to which they ought to give effect to
- Not suffer disorder of the mind that perverts their sense of right)
TRUE OR FALSE
A testator must be able to understand every detail of the effects of the will and the nature of the act
False
- They must understand the broad effects only
Can a testator suffering from insane delusion have ‘testamentary capacity’? Explain
Yes
The delusion must be unconnected with and has no effect on the terms of the will
When must the testaor have ‘testamentary capacity?
When the will is executed
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?
- 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
What different thing must be considered when assessing a testators ‘testamentary capacity?
- Mental health conditions
- Effect of depression
- Intermittent capacity (e.g., dementia)
- Illness
What is ‘the golden rule’?
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’
Is ‘the golden rule’ legally obliged?
No - considered best practice
What must someone challenging the validity of one’s will on the grounds of lack of capacity provide?
Evidence sufficient to raise doubt
Who does ‘the burden of proof’ to prove capacity lie with regarding capacity?
Propounder of the will (usually executor)
When can capacity be presumed?
When the will appears rational and has been duly executed
When must ‘knowledge and approval’ be present when generating a valid will?
At time of execution
What exception applies to the general rule for the presence of ‘knowledge and approval;’ when generating a valid will?
Exception in Parket v Felgate?
What three steps does the legal requirement of ‘knowledge and approval’ require a testator to take in the generation of a valid will?
- Read their will
- Understand the will
- Intend to give effect to its terms by signature
When can ‘knowledge and approval’ be presumed in the generation of a valid will?
If the testator had testamentary capacity and the will was executed in accordance with s 9 of the WA 1837
Which three scenarios do they courts submit that there is no presumption of ‘knowledge and approval’ of a validly executed will?
- Testator is blind or illiterate (i.e., unable to read the will)
- The will was signed by someone on behalf of testator
- Suspicious circumstances (e.g., will was prepared by someone who received significant benefit from it)
What is the purpose of ‘the attestation clause’?
Explains the circumstances under which the will was executed
When would an ‘affidavit of knowledge and approval’ be required when submitting will to probate?
When…
- No presumption of knowledge and approval
- Attestation clause does not address knowledge and approval
Why is one’s will invalid when made under influence or duress?
Because it does not reflect the testator’s true intention
What are the some of key principles concerning ‘undue influence’ set out by Re Edwards?
- Undue influence - where testator is coerced into making a will or including particular terms contrary to their true intention
- Undue influence goes beyond persuasion
- Burden of proof lies with person making allegation
- Court requires evidence of undue influence
Which s of the Will Act is a part of the legal requirements of executing a valid will?
S9
When are gifts that are intended for an attesting witness or their spouse void?
When a beneficiary or the beneficiary’s spouse acts as a witness
