Validity of Wills

Question 1

How does joint property pass on death?

Answer 1

If it is held by more than one person as beneficial joint tenants, upon the death of one their interest passes by survivorship to the surviving joint tenant

Question 2

How does property pass for tenants in common?

Answer 2

Under their will/intestacy rules

Question 3

How do insurance police pass on death?

Answer 3

The deceased’s PR will distribute it according to the will or intestacy rules

Question 4

How do pension benefits pass after death?

Answer 4

Family or dependants chosen at the trustee’s disscretion

Question 5

How does trust property pass on death?

Answer 5

The trust property will devolve according to the terms of the trust and not the deceased life tenant’s will

Question 6

What is a specific gift?

Answer 6

Specific items which the testator owns

Question 7

What are general gifts?

Answer 7

Items corresponding to a description

If T does not own the item at death, the executor must obtain the item using funds from the estate e.g shares

Question 8

What is a demonstrative gift?

Answer 8

General in nature but is directed to. be paid from a specific fund e.g, paid from a bank account

Question 9

What is pecuniary gift?

Answer 9

Gift money

Question 10

What is a residuary gift?

Answer 10

All the money and property left after the testator’s debts. the expenses of dealing with the estate and the other gifts made under the will have all been paid

Question 11

What are the 3 requirements of a will?

Answer 11

Capacity, intention and formalities

Question 12

What is the definition of testamentary capacity?

Answer 12

‘Soundness of mind, memory and understanding’

Question 13

What must testators understand when they create a will?

Answer 13

1. The fact that they are making a will which will have effect on their death
2. The extent of their proeprty
3. Moral claims to be considered

Question 14

When must testator’s have capacity?

Answer 14

At the time they execute their wills

Question 15

What is the effect is the testator lacks capacity?

Answer 15

The will is void

Question 16

What should a solicitor do if they are preparing a will for a testator whose mental state is in doubt?

Answer 16

Follow the golden rule - Solcitor should ask a medical practitioner to provide a written report confirming that the testator has testamentary capacity and ask the dr to witness the will

The solicitor should record their own view of the testator’s capacity in a file notice and keep it on file should someone challenge the will

Question 17

Who has the burden of proof when a will is challenged?

Answer 17

The person asserting that the will is valid

Question 18

What is the presumption of capacity?

Answer 18

The testator satisfied the mental capacity when making the will

Question 19

When are the courts less likely to find that the testator lacked capacity?

Answer 19

When it was prepared by an experienced, independent solicitor who met with the testator and explained the will to them or when a dr witnessed the will per the golden rule

Question 20

What is the meaning of intention?

Answer 20

When the will is signed, the testator must have general and specific intention - They must intend to make a will and intend to the particular will that is now being executed

Question 21

What is the presumption of knowledge and approval?

Answer 21

A testator who has the capacity and has read and executed the will is presumed to have the requisite knowledge and approval - this presumption does not apply:

• When T is blind/illiterate/ not personally signing
• Suspicious circumstances

Question 22

Can a solicitor accept instructions from a third party to draw up a will for T?

Answer 22

No, they should interview the T in the absence of a third party to ensure that any will drafted reflects the testator’s wishes

Question 23

How a will be challenged when the T had capacity and approved the contents of the will?

Answer 23

• Force or fear
• Fraud
• Undue influence

Question 24

What are the formalities of execution?

Answer 24

A will must be

1. In writing, signed by T (or another)
2. T must have intended his signature to give effect to the will
3. Signatures is acknowledge by T in the presence of 2 or more witnesses present at the same time
4. Each witness either attests and signs the will/ acknowledges his signature in the presence of the testator

Question 25

What is the presumption of due execution?

Answer 25

Arises if the will includes a clause which recites that the s.9 formalities were observed

i.e, when the will includes a clause like ‘ signed by the T in our joint presence and then by us in hers’ - this is an attestation clause which means anyone challenging the validity of the will on the ground that it was not validly executed has the burden of proving this

Question 26

Who cannot be a witness?

Answer 26

• Beneficaries
• The people married to beneficaries