Validity of Wills & Codicils

Question 1

Which are the four types of property that do not pass under a will?

Answer 1

Joint property held as beneficial joint tenant

Insurance policies on trust for named beneficiaries

Pension benefits if die ‘in service’

Trust property (devolves according to the terms of the trust)

Question 2

What are the 3 requirements for a valid will?

Answer 2

1. Capacity
2. Intention
3. Formalities (s9 Wills Act)

Failure to meet any one of these requirements will invalidate the will

Question 3

What is the definition of capacity set out in Banks v Goodfellow?

Answer 3

Capacity is ‘soundness of mind, memory & understanding’ → testator must understand:

(a) The nature of the act & its broad effects

(b) The extent of their property

(c) The moral claims they ought to consider

Question 4

What is the general rule about capacity for a will to be valid?

Answer 4

Testator must have capacity at the time they execute their will → must understand:

(a) The nature of the act & its broad effects

(b) The extent of their property

(c) The moral claims they ought to consider

Question 5

What is the exception to the general rule that a testator must have capacity at the time they execute their will?

Answer 5

If the testator has capacity when give instructions for the will - even if they do not have capacity by the time the will is executed (Parker v Felgate)

Nb. at the time of execution, must appreciate they are signing a will prepared in accordance with their previous instructions

Question 6

What happens if a testator lacks capacity?

Answer 6

The will is void

Question 7

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

Answer 7

Follow the ‘golden rule’:

• Ask a medical practitioner to:
  -Provide a written report confirming that the testator has capacity
  -Witness the will
• Solicitor should record their own view of the testator’s capacity in file note

Question 8

When will there be a presumption that a testator had capacity?

Answer 8

If the will is rational on the face of it & the testator showed no evidence of mental confusion before making the will

If there is anything to put capacity in doubt, the presumption does not apply & the PRs must prove capacity

Question 9

What is the burden of proof if someone wishes to challenge the validity of the will on the grounds of lack of capacity?

Answer 9

Burden is on the challenger to prove a lack of capacity

(where the presumption of capacity applies)

(If presumption does not apply, the burden is on the PRs)

Question 10

What is the general rule about intention when making a will?

Answer 10

The testator must have both general & specific intention at the time the will is executed

• General: intend to make a will (not another kind of doc)
• Specific: intend to make the particular will being executed → must know & approve the contents

Question 11

What is the exception to the general rule that a testator must have intention at the time the will is executed?

Answer 11

If the testator knew & approved the contents (ie. specific intention) when they gave instructions for the will, even if they lose intention by the time the will is executed

Question 12

When will there be a presumption that the testator had knowledge & approval (ie. intention)?

Answer 12

If the testator has capacity & has read + executed the will

Does not apply if:

• Testator is blind / illiterate / not signing personally
• Suspicious circumstances
• All or part of the will was included by mistake

Question 13

When does the presumption of knowledge & approval not apply?

Answer 13

Presumption of intention does not apply if:

• Testator is blind / illiterate / not signing personally (must have evidence to prove, eg. statement at end that was read to/by T who knew & approved)
• Suspicious circumstances (eg. will prepared by major beneficiary)
• All or part of the will was included by mistake

Question 14

If someone wishes to challenge the validity of the will on the grounds of lack of intention, what must they prove?

Answer 14

One or more of:

→ Force or fear (through actual or threatened injury)

→ Fraud

→ Undue influence (coercion or duress - but not persuasion stopping short of coercion)

→ Mistake

Question 15

What are the 4 key formalities requirements for a will to be valid?

Answer 15

Must comply with s9 Wills Act:

In writing

Signed by testator

Testator intended to give effect to will by signature

Signature must be witnessed

Question 16

Will a will be valid if another person has signed on the testator’s behalf?

Answer 16

Yes if signed in the testator’s presence & at their positive & discernible direction (verbal or non verbal)

Question 17

How must a signature be witnessed for a will to be valid?

Answer 17

(1) Testator’s signature is made/acknowledged in the presence of 2 witnesses present at the same time

(2) Witnesses sign the will in the presence of the testator (but not necessarily in the presence of each other)

*Nb. presence = mental (aware testator signing a doc) & physical (can see them signing)

Question 18

When will there be a presumption of due execution?

Answer 18

If the will includes an attestation clause stating that the s9 formalities were complied with

‘signed by the testator in our joint presence & then by us in his’

Question 19

When does a will not have to comply with the s9 Wills Act formalities?

Answer 19

If it is a privileged will: wills made by people on actual military service or mariner at sea can be in any form (incl oral)