Chapter 1: Execution of wills

Question 1

What three things must a testator have / do in order to make a valid will?

Answer 1

1. Capacity at the time the will was created
2. Intention to make a will
3. Executed the will in accordance with formalities

Question 2

How old must a testator be in order to validly make a will?

Answer 2

The testator must be at least 18 years old

Exception = privileged wills which are made by members of the armed forces on active service or sea-men at sea

Question 3

When a will is made, is there a presumption that a person had mental capacity at the time of creation?

Answer 3

There is a presumption that a person had mental capacity when making a will unless someone challenging the validity of the will can show a lack of capacity.

Question 4

Who has the burden of proving a testator did not have mental capacity, and what is the statutory test for this?

Answer 4

The person alleging the testator lacked capacity must show at the material time, the person is unable to make a decision for themselves because of an impairment or disturbance in functioning of the mind

Question 5

What is the statutory test a reiteration of and what three things did this require the testator to understand at the time of execution?

Answer 5

The common law test, which required the testator to understand:

1. The nature of the act of making a will
2. The extent of their property; and
3. The claims which they ought to give effect to even if they subsequently do not (i.e. testator understands who the persons are a testator would ordinarily give gifts to)

Question 6

What is the material time in most cases?

Answer 6

The material time is usually when the testator executed (signed) the will

Question 7

What is the exception to the rule that the material time is when the testator signs the will?

Answer 7

If the testator did not have mental capacity at execution, but did when giving instructions to the drafter, the testator will be deemed to have acted with capacity if:

1. The will was prepared in accordance with the instructions, and
2. At execution, the testator at least understood they were signing a will for which instructions had previously been given

Question 8

What two things are required to satisfy the intention to make a will?

Answer 8

Testator must have:

1. General intent to make a will, and
2. Specific intent to make that particular will, i.e. they knew and approved of the contents

Question 9

Who has the burden of showing the testator did not have intention, and how might they show this?

Answer 9

The person challenging their intention, and they may do so by showing the testator acted due to fear, fraud, undue influence, or mistake

Question 10

There is a general rebuttable presumption that a testator acted with knowledge and approval. When will the presumption not apply?

Answer 10

1. Testator is blind or illiterate or the will is signed on the testator’s behalf
2. There are suspicious circumstances e.g. drafter substantially benefits from the will

Question 11

Can a solicitor accept a gift from a testator?

Answer 11

Only if the testator seeks independent legal advice

Question 12

When will a will be regarded as having been made under duress?

Answer 12

If the will is made as a consequence of force or fear

Question 13

Can a will that has been made as a result of duress be admitted to probate?

Answer 13

Only if the Court pronounces that the will is valid and issues a grant in solemn form

Question 14

When will a will be regarded as having been made under undue influence?

Answer 14

• Coercion or pressure that overpowered the freedom of action of the testator. Must be more than mere persuasion
• Court more inclined to find undue influence where the testator is physically or mentally weak

Question 15

What are the requirements for a valid will?

Answer 15

The will must be:

1. In writing
2. Signed by the testator (or some person in T’s presence and at T’s direction such that it is clear T intended to give effect to the will)
3. Signed by two witnesses each in the presence of the testator, but not necessarily in each other’s presence

Question 16

Can a witness sign for testator if directed by the testator to do so?

Answer 16

Yes

Question 17

What is an attestation clause?

Answer 17

A signed clause confirming that the appropriate execution formalities have been complied with

E.g. Signed by the testator in our presence and then by us in his

Question 18

What is a special attestation clause?

Answer 18

• Necessary for blind or illiterate testators
• Evidences will was read to them, they understood and approved its contents and then they signed or was signed by another in testator’s presence at their direction

Question 19

Can a blind person be a witness?

Answer 19

No

Question 20

What are the requirements of a witness?

Answer 20

No formal requirements, but must be capable of understanding the signficance of being witness to signature

Question 21

Can an illiterate person be a witness?

Answer 21

Yes, provided that they are aware that the testator is signing the document

Question 22

Can a spouse be a witness?

Answer 22

No

Question 23

Can a beneficiary be a witness?

Answer 23

No

Question 24

If a will identifies another document, can it become part of the will?

Answer 24

Yes, but:

• The document must exist at the date of the will; and
• The document must be referred to in the will

Question 25

Do the witnesses need to see the contents of the will or know that the testator is signing a will?

Answer 25

No