Validity of Wills

Question 1

What is the ‘golden rule’?

Answer 1

The solicitor should ask a medical practitioner to provide a written report confirming that the testator has testamentary capacity and also ask the doctor to witness the will. Then he should record their own view of the testator’s capacity in a file note.

Question 2

Who has the burden of proof?

Answer 2

The person who is asserting that a will is valid.

Question 3

What is the presumption of capacity?

Answer 3

Executors can rely on it. It applies if the will looks rational and the testator showed no evidence of mental confusion before making the will.

Question 4

What if someone wants to challenge the will?

Answer 4

The burden shifts to that person to prove lack of capacity.

Question 5

What is intention?

Answer 5

When signing the will, the testator must have both general and specific intention.
Must intend to make a will and must intend to make the particular will now being executed.

Question 6

What is the exception in Parker v Felgate?

Answer 6

Generally, testators must have capacity AT THE TIME THEY EXECUTE THE WILL.
But Parker v Felgate: a will can be valid if the testator has capacity WHEN THEY GIVE INSTRUCTIONS for the will even if they LOSE CAPACITY by the time the will is EXECUTED.

Question 7

What is a presumption of knowledge and approval?

Answer 7

A testator who has capacity and has read and executed the will is presumed to have the requisite knowledge and approval.

Question 8

When does the presumption of knowledge and approval not apply?

Answer 8

1. Testator blind/illiterate/not signing personally
2. Suspicious circumstances (eg the will has been prepared by sb who is to be a major beneficiary under its terms or who is a close relative of a major beneficiary).
   In such cases, HMCTS will require evidence to prove knowledge and approval before they issue the grant of probate.
3. Mistake - if all or part of the will was included by mistake, any words included without the knowledge and approval of the testator will be OMITTED from probate.

Question 9

What should a solicitor do when given instructions from a third party to draw up a will?

Answer 9

They shouldn’t accept those instructions. They should interview the testator in the absence of the third party to ensure that any will drafter reflects the testator’s wishes.

Question 10

What are other ways of challenging a will?

Answer 10

Prove:
Force or fear
Fraud
Undue influence (coercion or duress). Persuasion stopping short of coercion is NOT undue influence.

Question 11

What are formalities of execution?

Answer 11

In writing, signed by the testator or some other person in his PRESENCE and by HIS DIRECTION;
it appears that the testator INTENDED his signature to GIVE EFFECT TO THE WILL;
the signature is MADE or ACKNOWLEDGED in the PRESENCE OF TWO OR MORE WITNESSES PRESENT AT THE SAME TIME;
each witness either attests and signs the will, or acknowledges his signature, IN THE PRESENCE OF THE TESTATOR.

Question 12

What if the witness is also a beneficiary under a will or the spouse/civil partner of a beneficiary?

Answer 12

The will is VALID but the gift to the witness/witness’s spouse or civil partner FAILS.

Question 13

What is remote witnessing?

Answer 13

It applies to wills made on or before 31 January 2024.
Applies ONLY where the testator sign their wills themselves. Where the will is signed ON BEHALF of the testator, it must be in the actual presence of the testator - remote presence is not enough.

Question 14

What are privileged wills?

Answer 14

A will made on ACTUAL MILITARY SERVICE OR BY A MARINER OR SEAMAN AT SEA may be in ANY FORM, including a MERE ORAL STATEMENT. The only requirement is that the testator INTENDS TO DISPOSE OF HIS PROPERTY AFTER HIS DEATH.

Question 15

What is the presumption of due execution?

Answer 15

Arises if the will includes a clause which recites that S 9 FORMALITIES WERE OBSERVED - ATTESTATION CLAUSE.

Question 16

What if there’s no attestation clause?

Answer 16

The HMCTS will require an AFFIDAVIT of DUE EXECUTION (or witness statement verified by a statement of truth) from a WITNESS or any other person who was PRESENT during the execution. Or an affidavit of handwriting evidence to identify the testator’s signature, or they will refer the case to a judge.

Question 17

Do solicitors preparing wills owe a duty of care to the prospective beneficiaries?

Answer 17

YES.

Question 18

What is the difference between an executor and an administrator?

Answer 18

Executor is appointed by will.
Administrator is NOT.

Question 19

What are two basic presumptions applied to establishing testator’s intentions through the language of the will?

Answer 19

Non-technical words bear their ordinary meaning.
Technical words are given their technical meaning.

Question 20

When can the court look at external or extrinsic evidence in order to ascertain the testator’s intentions?

Answer 20

If any part of the will is meaningless or the language used is ambiguous and evidence shows that the language is ambiguous in the light of the surrounding circumstances.

Question 21

What is rectification?

Answer 21

The court has a limited power to correct, or rectify a will. It arises where the testator’s intentions are clear BUT the wording of the will does nto carry them into effect.
The power is found in s 20 Administration of Justice Act and arises where the will FAILS to carry out the testator’s INTENTIONS and that failure is because of:
(a) a clerical error (eg. writing or omitting something by mistake).
(b) a failure to understand the testator’s instructions.

Question 22

When would you be unable to rely on s 20 AJA?

Answer 22

You can’t rectify a will because the solicitor who wrote the will misunderstood the law or thought that the words chosen achieved the desired outcome, but they didn’t.

Question 23

Is it true that the will is said to ‘speak from the date of death’?

Answer 23

YES. UNLESS a CONTRARY INTENTION APPEARS IN THE WILL.

Question 24

How are beneficiaries construed?

Answer 24

As people alive at the time of the will’s EXECUTION. It’s construed that the gift is made to the person who fulfils the description WHEN THE WILL WAS MADE.

Question 25

How would you construe a gift to ‘my children’?

Answer 25

Blood relationships - so testator’s own children AND ADOPTED CHILDREN, BUT NOT children of the testator’s spouse or civil partner, or those of a cohabitant.

Question 26

What effect does the Gender Recognition Act 2004 has?

Answer 26

4th April 2005 - if the will is made after that date and a person changes gender, they CAN claim under the will. Eg if it says ‘to my nieces’ but a guy changes gender then she can claim.

Question 27

Are terms ‘husband/wife’ and ‘civil partner’ synonymous?

Answer 27

NO. A gift to ‘John’s wife’ will fail if John never marries but enters a civil partnership instead.

Question 28

Can a gift to a charity fail for uncertainty?

Answer 28

No. Provided that it is clear the gift is exclusively for charitable purposes, the court can direct which charity is to benefit.

Question 29

Will the gift fail if there are three witnesses and one is a beneficiary?

Answer 29

NO, provided that the will is validly executed without the beneficiary’s signature.

Question 30

What effect does divorce or dissolution have of marriage or civil partnership?

Answer 30

It’s as if the former spouse or civil partner had died.

Question 31

What is ademption?

Answer 31

A specific legacy will fail if the testator no longer owns that property at death. The gift is said to be ‘adeemed’.

Question 32

Is it true that the presumtion is that the testator intended that the specific gift was to be of the particular asset they owned at the date of the will?

Answer 32

YES.

Question 33

What is a codicil?

Answer 33

It’s a supplement to a will. MUST be executed in the same way as a will. It republishes the will as at the date of the codicil.

Question 34

When does a gift lapse?

Answer 34

If the beneficiary dies before the testator. The property then falls into residue, unless the testator has provided for the possibility of lapse by including a substitutional gift. If a gift of residue lapses, the property passes under the intestacy rules.

Question 35

What happens if the deaths of the testator and beneficiary occur very close together?

Answer 35

If the order cannot be proven, it is presumed that the elder of the two died first.

Question 36

What are survivorship clauses?

Answer 36

Gifts in wills are made conditional sometimes upon the survival of the beneficiaries for a specific period of time.

Question 37

What is the effect of a gift to ‘A and B Jointly’ vs ‘everything to A and B in equal shares’?

Answer 37

1) If A dies before the testator, the whole gift passes to B.
2) If A dies before the testator, A’s share lapses and B takes only one share.

Question 38

Is it true that if a gift is a class gift, there’s no lapse unless all members of the class predecease the testator?

Answer 38

Yes.

Question 39

What is s 33 Wills Act exception?

Answer 39

If the issue dies before the testator, the gift goes to the issue’s issue. Applies to testator’s children or remoter issue (ie direct descendants).

Question 40

What is a disclaimer?

Answer 40

The beneficiary can disclaim the gift if they do not want it. They are then treated as having predeceased the testator, which will ALLOW THE BENEFICIARY’S ISSUE TO REPLACE THEM UNDER s 33.

Question 41

What is forfeiture?

Answer 41

A person should not benefit from the estate of a person they have unlawfully killed. THE RULE DOES NOT APPLY WHERE THE KILLER WAS INSANE.