2. Will Validity Flashcards
What is the primary focus of the element ‘WILL VALIDITY – CAPACITY’?
The requirements for making a valid will with a focus on testamentary capacity
Testamentary capacity refers to the mental ability of the testator to understand the nature of their actions when making a will.
What happens to a deceased person’s assets if they made a valid will?
The assets are distributed in accordance with the terms of the will
If the will is not valid or does not cover all assets, intestacy rules apply.
Define ‘testamentary freedom’.
The ability of a testator to leave their property to whomever they choose
This concept varies by jurisdiction; some require specific provisions for family members.
What is the minimum age requirement to make a valid will according to s7 Wills Act 1837?
18 years old
Exceptions apply for those in military service.
What are the four requirements for testamentary capacity as per Banks v Goodfellow?
- Understand the nature of the act and its effects
- Appreciate the extent of the property
- Understand moral claims to which they ought to give effect
- Have no disorder of the mind affecting their judgment
What does ‘nature of the act’ imply in testamentary capacity?
The testator must understand that they are signing a document that takes effect on death and disposes of their property
They are not required to understand every detail of the will.
What is required for a testator to demonstrate ‘extent of property’?
A general recollection of what they own and the approximate value of their estate
Perfect memory or knowledge of every item is not necessary.
What are ‘moral claims’ in the context of testamentary capacity?
The ability of the testator to appreciate anyone to whom they owe a moral responsibility
There is no requirement to leave anything to those for whom they feel moral responsibility.
What does ‘disorder of the mind’ refer to in testamentary capacity?
A condition preventing the testator from exercising their natural faculties in disposing of property
A testator may still have capacity if the delusion is unrelated to the terms of the will.
What is the timing requirement for testamentary capacity?
The testator must have testamentary capacity at the time the will is executed
Exceptions exist, such as in Parker v Felgate.
What is the ‘golden rule’ established in Kenward v Adams?
A medical practitioner should assess the capacity of a testator who is elderly or seriously ill
This is best practice, not a legal obligation.
Who bears the burden of proof regarding testamentary capacity?
The propounder of the will (usually the executor)
Capacity is presumed if the will appears rational and is duly executed.
What is the relationship between the Mental Capacity Act 2005 and testamentary capacity?
The statutory test was intended to align with the common law test for testamentary capacity but does not replace it
If the two tests yield different results, the common law test prevails.
What is a statutory will?
A will authorized by the court for an adult who lacks capacity to make one for themselves
The court must find it in the person’s best interests.
What is required for a testator’s knowledge and approval?
A general intention to make a testamentary document and specific intention to approve the particular will signed
They must understand and read their will.
What presumption exists regarding knowledge and approval of a will?
Knowledge and approval are presumed if the testator had testamentary capacity and the will was executed according to s 9 Wills Act 1837
This presumption can be rebutted if evidence raises doubt.
What is the significance of the attestation clause in relation to knowledge and approval?
It explains the circumstances under which the will was executed and may require an affidavit if presumption does not apply
It helps mitigate risks associated with proving knowledge and approval later.
What constitutes undue influence in the context of wills?
Coercion that leads a testator to make a will or include terms against their judgment and true intention
Undue influence is distinct from lawful persuasion.
What is the burden of proof for claims of undue influence?
The burden lies with the person alleging undue influence
Evidence must show facts are inconsistent with any other hypothesis.
What is the difference between testamentary dispositions and lifetime arrangements?
Testamentary dispositions refer to arrangements made through a will, while lifetime arrangements are made during the testator’s life.
Who bears the burden of proving undue influence in will contests?
The person making the allegation of undue influence.
What must be shown to prove undue influence?
Evidence must show that the facts are inconsistent with any other hypothesis.
What factors determine how much pressure can overbear a testator’s will?
The physical and mental strength of the testator.
Is the fairness of a testator’s will relevant in determining if they acted as a free agent?
No, the question is whether the testator acted as a free agent in executing the will.
