validity of wills + codicils: testamentary capacity

Question 1

what r the 3 key requirements for making a valid will?

Answer 1

capacity

intention

correct formalities of execution

Question 2

where r the rules for making a valid will set out?

Answer 2

wills act 1837

Question 3

must all 3 requirements be met for a will to be valid?

Answer 3

yes, all 3 must be fulfilled

Question 4

what happens if even 1 requirement for a valid will is missing?

Answer 4

will = not valid

Question 5

1st requirement for a person to make a valid will?

Answer 5

person must be 18+ yrs old (w limited exceptions)

Question 6

2nd requirement for making valid will?

Answer 6

person must have mental capacity, AKA testamentary capacity

Question 7

case providing definition of testamentary capacity?

Answer 7

banks v goodfellow (1870)

Question 8

according to banks v goodfellow, what must the T understand about making a will?

Answer 8

that they were making a will + it will take effect after their death

Question 9

what must the T understand about their property?

Answer 9

the extent of their property, though not every single item

Question 10

what must the T be aware of re moral claims?

Answer 10

moral claims of people they might reasonable leave things to, even if they choose not to

Question 11

what condition must not suffer from when making a will?

Answer 11

delusions that affect their decisions in the will

Question 12

when must the T generally have capacity to make a valid will?

Answer 12

when signing the will

Question 13

exception to general rule about when capacity must exist?

Answer 13

parker v felgate (1883)

Question 14

under parker v felgate, when is a will valid despite T lacking capacity at signing?

Answer 14

if T had capacity when giving instructions to a solicitor, will matches those instructions + T understands this at time of signing

Question 15

what did the mental capacity act (MCA) 2005 introduce?

Answer 15

a statutory test to assess general decision-making capacity

Question 16

was there uncertainty about the MCA applying to wills?

Answer 16

yes, it was uncertain whether the MCA test applied to wills

Question 17

what did case law (scammell v farmer, james v james, clitheroe v bond) confirm about the capacirt test for wills?

Answer 17

that banks v goodfellow remains the main test for wills

Question 18

what did the court state in baker v hewston [2023] about the capacity test?

Answer 18

reaffirmed banks v goodfellow as the correct test + said the MCA test is broadly consistent + can be a useful cross-check

Question 19

what is a statutory will?

Answer 19

will made by the court of protection for someone who lacks capacity to make their own will

Question 20

who signs a statutory will?

Answer 20

a court-authorised person

Question 21

what makes a statutory will valid?

Answer 21

it is sealed by the court

Question 22

what info must the court have to approve a statutory will?

Answer 22

full info about the person, their family, property, and any past wills

Question 23

on what basis will the court approve a draft statutory will?

Answer 23

only if it is in the person’s best interests

Question 24

what happens if the T lacks capacity?

Answer 24

will is invalid

Question 25

when should solicitors consider applying the "golden rule"?

Answer 25

when the T's mental state is in doubt due to age or illness

Question 26

what case introduced the "golden rule"?

Answer 26

kenward v adams (1975)

Question 27

what does the golden rule recommend a solicitor should do re medical opinion?

Answer 27

ask a doctor to provide a written report confirming the T has testamentary capacity

Question 28

what role should the doctor play when the will is signed?

Answer 28

the doctor should witness the will

Question 29

what should the solicitor record re T's capacity?

Answer 29

file note w their own opinion on T's capacity

Question 30

what should be done w all written evidence re to the golden rule?

Answer 30

should be kept on file

Question 31

why is keeping written evidence important under the golden rule?

Answer 31

it can help if someone challenges the will's validity after the T's death

Question 32

who normally has to prove a will is valid?

Answer 32

person claiming the will is valid

Question 33

why isn't it practical to require executors to always prove the T's mental state?

Answer 33

it would be too burdensome for executors (E)

Question 34

when does the issue of a will's validity usually arise?

Answer 34

after the T's death, usually when E's apply for probate

Question 35

why is it difficult to prove the T's mental state at the time of signing the will?

Answer 35

it may be years after the will was signed, making it hard to find evidence

Question 36

what helps executors prove a will is valid despite the time gap?

Answer 36

legal presumption that the will is valid

Question 37

is the person claiming a will is valid always required to prove it?

Answer 37

no, in most cases, this is not required due to a presumption of capacity

Question 38

when does the presumption of capacity apply?

Answer 38

it applies if the will appears rational + T showed no signs of confusion before making it

Question 39

who carries the burden of proof if a will is challenged for lack of capacity?

Answer 39

person challenging the will must prove the T lacked capacity

Question 40

what reduces the chance of courts finding lack of capacity?

Answer 40

if an experienced, independent solicitor wrote + explained the will to the T

Question 41

what impact does following the golden rule have on the will's validity?

Answer 41

if a medical practitioner writes a report + witnesses the will, it becomes very hard to challenge

Question 42

in the mary + wesley case (fictional), what claim does wesley make?

Answer 42

he claims that mary lacked capacity when she made the will

Question 43

what was mary's decision in her will (fictional)?

Answer 43

she left her estate to charity + named her solicitor, simon, as her executor

Question 44

what is wesley's argument based on? (fictional)

Answer 44

that mary did not consider his moral claim, referring to the banks v goodfellow test

Question 45

can a will still be valid if T chooses not to include someone w a moral claim?

Answer 45

yes, if T knew of them + chose not to include them

Question 46

why is mary's will likely to be upheld despite wesley's challenge (fictional)?

Answer 46

the will is rational, there was no confusion + presumption of capacity applies

Question 47

what makes it harder for wesley to prove lack of capacity (fictional)?

Answer 47

if the solicitor met mary + explained the will to her