Validity of a will

Question 1

What is the main purpose of a will?

Answer 1

To establish how a person’s assets will be distributed after their death.

Question 2

What happens if a deceased did not make a valid will?

Answer 2

The intestacy rules will determine who inherits.

Question 3

What is testamentary freedom?

Answer 3

A testator can leave their property to whomever they choose.

Question 4

What is the minimum age requirement to make a valid will according to s7 Wills Acts 1837?

Answer 4

18 years old.

Question 5

What are the exceptions to the age requirement for making a will?

Answer 5

• Married minors
• Those in military service

Question 6

What are the three legal requirements to make a valid will?

Answer 6

• Testamentary capacity
• Knowledge & approval
• Formal requirements (s.9 Wills Act 1837)

Question 7

What does testamentary capacity refer to?

Answer 7

A testator must be mentally capable of making a will.

Question 8

What case established the common law test for testamentary capacity?

Answer 8

Banks v Goodfellow.

Question 9

What are the 4 requirements for testamentary capacity?

Answer 9

• Nature of the Act
• Extent of the property
• Moral claims
• Disorder of the mind

Question 10

What must a testator understand according to the Nature of the act?

Answer 10

• They must understand they are signing a document that takes effect on death and disposes of their property.
• The testator should be able to understand the broad effects of the will, not every little detail

Question 11

What does a testator need to appreciate regarding the extent of their property?

Answer 11

• They should have a general recollection of what they own and the approximate value of their estate/ value of assets.
• Testor not required to recall every item and the exact value of each
• Test is for understanding rather than perfect memory

Question 12

What are moral claims in the context of testamentary capacity?

Answer 12

A testator should appreciate those to whom they owe a moral responsibility.

Question 13

What is required for a testator’s mental state regarding disorder?

Answer 13

They must have no disorder of the mind that affects their judgment.

If suffering from insane delusions affecting their judgement, they lack testamentary capacity

Question 14

When must a testator have testamentary capacity?

Answer 14

At the time the will is executed.

Question 15

What is the exception to the timing requirement established by Parker v Felgate?

Answer 15

A testator can still make a valid will if they:
* Had testamentary capacity when they gave instructions for the will
* The will was prepared in accordance with those instructions
* At the time of execution, the testator understood they were signing a will for which they had previously given instructions

Question 16

When does the exception in Parker v Felgate apply

Answer 16

When the testator’s testamentary capacity fluctuates over time (as a result of illness) or due to an unexpected event

Question 17

What is fluctuating capacity?

Answer 17

A testator’s capacity can change over time due to illness or circumstances.

Question 18

What is the ‘golden rule’ established in Kenward v Adams?

Answer 18

A medical practitioner should assess the testator’s capacity and record the assessment.

Question 19

Who bears the burden of proof regarding testamentary capacity?

Answer 19

The propounder of the will (usually the executor).

Question 20

What does the Mental Capacity Act 2005 introduce?

Answer 20

A general statutory test of a person’s capacity to make decisions.

Question 21

What can the court authorize if a client lacks testamentary capacity?

Answer 21

The execution of a will on behalf of an adult who cannot make one for themselves.

Question 22

What must a testator have regarding their testamentary document?

Answer 22

A general intention to make a testamentary document that disposes of their property.

Question 23

What is required for a testator’s knowledge and approval?

Answer 23

They must know and approve of the contents of the will.

Question 24

When is knowledge and approval presumed?

Answer 24

If the testator had testamentary capacity and the will was executed in accordance with s 9 Wills Act 1837.

Question 25

In which circumstances is there no presumption of knowledge and approval?

Answer 25

* The testator is blind or illiterate * The will was signed by someone on behalf of the testator * There are suspicious circumstances

Question 26

What is required if there is no presumption of knowledge and approval?

Answer 26

An affidavit of knowledge and approval is usually needed.

Question 27

What invalidates a will even if the testator has knowledge and approval?

Answer 27

If the will was made as a result of undue influence or duress.

Question 28

What is undue influence in relation to wills?

Answer 28

Coercion into making a will or including particular terms against the testator's true intention.

Question 29

What does the burden of proof for undue influence require?

Answer 29

Evidence that is inconsistent with any other hypothesis.

Question 30

What is the minimum requirement for a will to be valid according to s.9 Wills Act 1837?

Answer 30

It must be in writing and signed by the testator.

Question 31

What must the signature indicate according to s.9 (b)?

Answer 31

It must appear that the testator intended to give effect to the will.

Question 32

What does s.9 (c) require regarding witnesses?

Answer 32

The signature must be made or acknowledged in the presence of two or more witnesses present at the same time.

Question 33

What is the requirement for witnessing the will as per s.9 (d)?

Answer 33

Each witness must either attest and sign the will or acknowledge their signature in the presence of the testator.

Question 34

What information should be noted about each witness in case the will is challenged?

Answer 34

The full name, addresses, and occupation of each witness ## Footnote This information is necessary for potential affidavits regarding the execution or the testator's mental state.

Question 35

What are the two ways a witness can attest to a will according to Section 9 (d)?

Answer 35

1. Attests and signs the will 2. Acknowledges his signature in the presence of the testator ## Footnote No form of attestation is necessary.

Question 36

Must both witnesses sign the will in front of each other?

Answer 36

No, it is not necessary for each witness to also sign in front of each other ## Footnote Both must sign in front of the testator.

Question 37

What is an attestation clause?

Answer 37

It describes the circumstances under which the will was executed ## Footnote Example: 'Signed by the above named [testator] in our joint presence and then by us in his/hers.'

Question 38

Is there a legal obligation to include an attestation clause in a will?

Answer 38

No, there is no legal obligation to include an attestation clause ## Footnote However, a properly drafted clause raises a presumption of due execution.

Question 39

What happens in the absence of a proper attestation clause?

Answer 39

Proof of proper execution is required, usually through an affidavit of due execution sworn by the witnesses ## Footnote A poorly worded clause may lead to complications.

Question 40

What should be done if the will is executed under special circumstances?

Answer 40

The attestation clause should be amended to reflect these special circumstances ## Footnote For example, if the testator cannot read, the clause should indicate that the will was read to them.

Question 41

What is the consequence of failing to follow the correct execution process for a will?

Answer 41

It may constitute negligence ## Footnote Solicitors should oversee the execution process to avoid this.

Question 42

What does Section 15 of the Wills Act state regarding gifts to attesting witnesses?

Answer 42

Gifts to an attesting witness (or their spouse) are void ## Footnote This means a beneficiary cannot inherit if they acted as a witness.

Question 43

Does the will remain valid if a beneficiary acts as a witness?

Answer 43

Yes, the will remains valid ## Footnote However, the solicitor may be negligent if they do not advise on the effect of Section 15.

Question 44

What does Section 28(4)(a) of the Trustee Act 2000 confirm regarding professional executors?

Answer 44

Section 15 will not apply to the remuneration received by the professional executor for witnessing the will ## Footnote This allows them to be compensated regardless of their witness status.

Question 45

What happens if a beneficiary is appointed as an executor and Section 15 applies?

Answer 45

The appointment remains effective even if they are denied inheritance ## Footnote If there are at least two other witnesses not affected by Section 15, the will is properly executed.