Validity of a will

Question 1

What is the minimum age requirement for a testator to have capacity?

Answer 1

18 years old

Question 2

What is the legal presumption regarding the capacity of a testator?

Answer 2

The testator is presumed to have capacity unless evidence suggests otherwise

Question 3

What is the test for capacity?

Answer 3

Banks v Goodfellow:
1. Must understand the nature of the act and its effects
2. Appreciate the extent of the property of which they are disposing
3. Understand and appreciate the moral claims to which they ought to give effect
4. No perversion of the mind

Question 4

Is a testator obligated to leave anything to individuals they have moral responsibilities to?

Answer 4

No obligation to leave those people anything

Question 5

What is the significance of insane delusions in relation to testamentary capacity?

Answer 5

A testator suffering from general or will specific insane delusions affecting judgment lacks capacity. If the delusions have no effect on their will, they will still have capacity.

Question 6

When must capacity be held for a will to be valid?

Answer 6

At the time the will is executed

Question 7

What is the exception outlined in Parker v Felgate regarding testamentary capacity?

Answer 7

A testator can make a valid will despite lacking capacity at execution if they:
- had capacity when giving instructions
- and the will was prepared in accordance with those instructions
- and the testator understood they were signing a will for which they had previously given instructions

Question 8

What is meant by fluctuating capacity?

Answer 8

Capacity that changes due to conditions like dementia or specific life events

Question 9

What is the Golden Rule concerning assessment of a testator’s capacity?

Answer 9

A medical practitioner should assess the testator’s capacity if they are old or ill.

Question 10

What is the presumption of capacity in relation to wills?

Answer 10

The burden of proof lies with the propounder, but capacity is presumed if the will appears rational and duly executed.

Question 11

What must someone provide to challenge the validity of a will on capacity grounds?

Answer 11

They must provide evidence sufficient to raise doubt.

Question 12

What happens if evidence is provided to challenge capacity?

Answer 12

The presumption is rebutted, and the burden of proof reverts to the propounder to demonstrate the testator satisfied the Banks v Goodfellow test.

Question 13

What is the purpose of the Mental Capacity Act 2005?

Answer 13

It is intended to tie in with the common law test rather than replace it - therefore common law test prevails if there is conflict.

Question 14

What are statutory wills?

Answer 14

It is possible for the court to authorize the execution of a will on behalf of an adult who lacks capacity to make one for themselves.

The court must be perusaded that:
- there are grounds to diverge from existing testamentary position
- and it is in the person’s best interests

Question 15

What must a testator do regarding their will to show knowledge and approval?

Answer 15

The testator must read their will, understand it, and by their signature intend to give effect to its terms.

Question 16

When is K+A required?

Answer 16

At the time of execution unless the exception in Parker v Felgate applies.

Question 17

Can knowledge and approval (K&A) be present for parts of the will?

Answer 17

Yes, K&A can be present for parts of the will, and those parts will be admitted to probate.

Question 18

When is there a presumption of K+A?

Answer 18

There is a presumption of K&A if the testator has testamentary capacity.

Question 19

What happens if there is evidence raising doubt about K&A?

Answer 19

The presumption of K&A is rebutted, and the burden of proof shifts to those seeking to enforce the will.

Question 20

When is there no presumption of K&A?

Answer 20

• Testator was blind or illiterate
• Will was signed by someone on behalf of the testator
• There are suspicious circumstances (will was prepared by a key beneficiary

Question 21

What is needed if there is no presumption of K&A and the attestation clause does not address it?

Answer 21

An affidavit of K&A would be needed when submitting the will to probate.

Question 22

What is preferable to an affidavit if there is no presumption of K+A?

Answer 22

Drafting the attestation clause to reflect the steps taken to ensure the T has full K+A

Question 23

What happens if a will is made under undue influence (UI)?

Answer 23

If a will was made under UI, the will is invalid.

Question 24

What if only part of a will was made under UI?

Answer 24

If part of a will was made under UI, the remainder may be valid provided the omissions do not upset the tenor of what remains.

Question 25

How is UI summarized?

Answer 25

UI goes beyond persuasion. It is where a testator is coerced into making a will or has to surrender to pressures. ## Footnote Re Edwards

Question 26

Who has the burden of proving UI?

Answer 26

The burden of proving UI lies with the person making the allegation.

Question 27

What must be proven to establish UI?

Answer 27

It must be proven that the facts are inconsistent with any other hypothesis other than UI. ## Footnote very high bar

Question 28

What is the significance of the testator's physical and mental strength in UI cases?

Answer 28

The physical and mental strength of the testator are relevant when determining how much pressure would be necessary to overbear the will.

Question 29

What are the formal requirements for a will?

Answer 29

- in writing - signed by the testator - or by some other person in their presence and at their direction - the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time - each witness should attest and sign the will or acknowledge his signature in the presence of the testator

Question 30

What forms of writing are acceptable for a will?

Answer 30

Includes handwriting or typed documents. Pencil requires further evidence to confirm finality.

Question 31

What constitutes a signature for a will?

Answer 31

Any mark can constitute a signature if the testator intends it to be.

Question 32

What is required for a signature made by another person?

Answer 32

There must be a direction to sign the will on behalf of the testator, and the testator must be present when signing.

Question 33

What are the requirements for witnesses?

Answer 33

Witnesses must be physically and mentally present, but they do not need to know the will's terms. No minors, blind, drunk, or unsound mind individuals can witness.

Question 34

What information should be noted about each witness?

Answer 34

Full names, addresses, and occupations of each witness should be noted.

Question 35

Is there a legal obligation to hvae an attestation clause?

Answer 35

No legal obligation exists for an attestation clause, but proof of proper execution is required in its absence.

Question 36

What is the purpose of an attestation clause?

Answer 36

It usually notes any special circumstances under which the will was signed.

Question 37

What should be included for blind or illiterate testators?

Answer 37

A special attestation clause should be included stating that the will was read aloud for the testator and they confirmed understanding its contents.

Question 38

What does S15 Wills Act 1837 state about gifts to attesting witnesses?

Answer 38

Any gifts to an attesting witness or their spouse are void, but this does not make the will void.

Question 39

Can a beneficiary witness a will?

Answer 39

Yes, but any gifts to them would be void.

Question 40

Does S15 Wills Act 1837 apply to professional executors?

Answer 40

No, it does not apply to the remuneration of professional executors.

Question 41

Can attesting witnesses be appointed as executors?

Answer 41

Yes, attesting witnesses can still be appointed as executors.

Question 42

How can the effect of S15 be disregarded?

Answer 42

If there are two other witnesses not caught by S15 or the will is confirmed by a properly executed codicil.

Question 43

What are the overall requirements for a valid will?

Answer 43

- Formalities - Capacity - Knowledge and approval