Execution of Wills Flashcards
To make a valid will, the testator (T) must have mental ______, and the ________ to make a will, which must also be duly _______ in accordance with s9 Wills Act 1837.
capacity, intention, executed
T is presumed to have the necessary mental capacity to make a will unless someone challenging the will’s ______ can point to a lack of ________
validity, capacity
What 3 things must T have understood when making the will in order to show mental capacity?
- Nature of their act
- Extent of their property
- Who T would normally give gifts to
When may a court deem T to have acted with capacity if they didn’t have adequate capacity at the date of execution?
If they had sufficient capacity when instructing the will drafter
When will a gift under a will fail unless evidence of T’s knowledge and approval of the gift is offered by the person putting forward the will?
Suspicious circumstances
What should a solicitor whose been asked to draft a will with a substantial gift to them do?
Refuse to draft the will and its gift unless T has taken independent advice
When is a will issued under duress?
If due to force or fear of injury
When is a will entered into due to undue influence?
Where coercion or pressure overpowers T’s volition
Is mere persuasion enough to amount to undue influence?
No
Are wills made as a consequence of duress or undue influence admitted to probate? Why/why not?
No - as it may prove a lack of intention
What are the 4 requirements for a will to be validly executed?
- in writing
- Signed by T
- In the presence of 2+ witnesses
- Signed by each witness in the presence of T
Who else can sign a will instead of T?
Someone in T’s prescence who T has directed to sign
