1): The Validity of a Will and Interpretation of the Contents of a Will Flashcards
(31 cards)
What are the three requirements for a valid will or codicil?
- Testamentary capacity (sound mind, 18+, understands nature/effect of will, property, and claims)
- General and specific intention to make and approve the will
- Compliance with s.9 Wills Act 1837:
-In writing and signed by testator
-Signed in presence of 2 witnesses
-Witnesses sign in testator’s presence
What does the Rule in Parker v Felgate state?
A will can be valid if:
Testator had capacity when giving instructions
Remembers giving those instructions
Understands the will reflects those instructions at the time of signing
What factors vitiate the presumption of knowledge and approval?
Blindness or illiteracy
Fraud, duress, undue influence, or mistake
Suspicious circumstances at execution
What other rules apply to execution and attestation?
Attestation clause not required but evidentially helpful
Dating the will is not required but is good practice
Special cases:
-Remote witnessing allowed
-Signing with a mark permitted
-Privileged wills for soldiers/sailors
Who can and cannot witness or benefit under a will?
Witness must sign in testator’s presence (not necessarily at same time)
Witnesses cannot benefit (nor can their spouse or civil partner)
Blind, intoxicated, or mentally incapable people should not witness
Who cannot receive a valid gift under a will?
A witness
The witness’s spouse or civil partner
A beneficiary deriving interest from the witness
(Note: only the gift is void — the will itself remains valid)
Who are personal representatives and how are they appointed?
Executors (named in will)
Administrators (if no valid will or executor unable/unwilling)
Appointment methods: by name, nomination, firm/trust corp
What if there is no express appointment of PRs?
Appointment may be based on construction of the will or decided by the court
What other executor appointment rules should be noted?
Can renounce in writing if no intermeddling
Power reserved allows later grant
May claim expenses; remuneration only if acting professionally (s.29 Trustee Act 2000)
Under-18s cannot act as executors
Appointment fails if executor predeceases testator or loses capacity
What happens if there is more than one executor and one renounces?
Power reserved can be granted to the renouncing executor, allowing them to apply for a grant of probate at a later date.
What counts as an amendment to a will?
Any change to the text, including:
Insertions between the lines
Additions at the end
Deletions of legible text
Obliterations (text that can no longer be read)
How are wills amended and what are the rules on alterations?
Before execution: presumed made after unless rebutted
After execution:
-Must be in ink (pencil presumed non-final)
-Must be signed/initialled near the change
-Or re-executed
Obliterations/interlineations must comply with s.9 Wills Act or render original wording unreadable
What is the effect of re-executing a will after making amendments?
Re-execution confirms the amendments if expressly mentioned.
Avoids presumption that amendments were made after execution.
Re-execution does not confirm deliberative (non-final) amendments unless expressly stated.
What is a codicil and how is it used?
legal document that amends a will without rewriting it
Same formalities as a will (s.9 Wills Act)
Usually refers to the original will by date
May validate prior amendments or improperly executed wills
Annexed to the will and read in conjunction with it.
How can a will be revoked?
Marriage/civil partnership (unless will shows intent otherwise)
New will or codicil (unless expressly stated)
Written declaration complying with s.9 Wills Act
Physical destruction with intent
What is the effect of divorce or unlawful killing on a will?
Divorce: treated as if ex-spouse predeceased testator (s.18A Wills Act)
Unlawful killing: beneficiary forfeits gift; may pass to their children (s.33 Wills Act)
What is a legacy in a will?
A gift of personalty (movable property).
What are the types of gifts in a will?
General legacy: not tied to an asset (e.g. “£500 to X”)
Specific legacy: named asset (e.g. “my gold watch”)
Demonstrative legacy: sum from a specific source (e.g. “£1,000 from bank account”)
Devise: gift of land
When do gifts fail in a will?
Disclaimer: beneficiary refuses the gift, passes to others per will
Ademption: item no longer owned at death
Lapse: beneficiary divorces/dies before testator (unless s.33 Wills Act applies)
Abatement: estate can’t meet debts; general legacies abate first
What if a beneficiary witnesses a will?
Gift to them fails (s.15, Wills Act), but the will remains valid.
What happens if testator and beneficiary die simultaneously?
Oldest presumed to have died first if no evidence
What is intestacy and when does it apply?
When a person dies without a valid will
Or the will fails to dispose of the entire estate (partial intestacy)
Governed by Administration of Estates Act 1925
What property is excluded from intestacy rules?
Joint assets (pass by survivorship)
Trust assets, life insurance for named individuals
Nominated or pension assets
What happens if intestate leaves a spouse and no issue (post-1 Oct 2014)?
Spouse inherits the entire estate
