Validity & Revocation Flashcards
Who can make a will
anyone Over 18, must Comply with Wills Act 1837 and Administration of Justice Act 1982
Requirements
Sufficient Mental Capacity
Necessary intention
Legal formalities meet
Capacity
Sound Mind ( nature of act and its results) Sound Knowledge (extent of assets) Sound Understanding( morally bound to provide doesn't have to)
Mental Capacity Act 2005 s2 (1)
A person lacks capacity if unable to make decision for himself because of an impairment or disturbance of the mind or brain
Mental Capacity Act 2005 s3 (1)
Person unable to make decision for themselves if they are unable to understand info relevant to the decision
Retain the information
Use/weigh info as part of the decision making process
Communicate decision
Intention
Knowledge and approval knows content and its affect can be amended if signed by another (read out)
Attestation Clause
Signed by in presence of witness and signed by witness in my presence
Formalities
In Writing
Signed and Intend signature to give effect to the Will
Signed by testator(or by someone else at testators direction) and witness(at least 2) in each other presence
Signed by Witnesses in presence of testator
S11 wills act 1837
Privileged Will
Who can make a privileged will
over 14
Soldiers/airman in actual military service
Mariners or seamen at sea
Members of HM navel or marine forces in actual service
What is a Privileged will
Enable persons in military emergencies or at war to make a will without complying with formal requirements these wills can be oral
Donationes mortis causa
Death Bed Gift
Donationes mortis causa - conditions
Made in contemplation of death in near future
Gift conditional of death
Must be transferred
S15 Wills act
Witness (and spouses) must not be a named Beneficiary in a will id are gift will fail (unless mirror willls)
S1 Wills act
Gifts to witnesses can be saved if will is witnessed by two non beneficiary witnesses
Forfeiture Rule (Forfeiture Act 1982)
Common law rule can not benefit from crime, relief can be granted if found guilty on grounds of loss of control/diminished responsibility
Revocation(revoking a will)
Marriage/Civil partnership
Another will/Codicil
Destruction
Properly executed declaration by the testator
Revocation by Marriage.Civil Partnership
Section 18 WA -Automatic revocation of previous will unless will made in anticipation of marriage (Sec 18(3) WA) to that person.
Effects of Divorce/Dissolution of civil partnership
S 18A WA states any appointment to former spouse takes effect as if the former died when the marriage was dissolved.
Revocation by another will or codicil
A will containing a revocation clause will revoke any previous wills.
Revocation clause
This is the last will and testament of me (x) and I hereby revoke all wills and testamentary dispositions made by me
Revocation by destruction
Must be intentional destruction - either by themselves or directing someone else to do it in his presence.
Revocation by a properly executed declaration
S20 WA a will can be revoked by some writing so long as it declares an intention to revoke and be signed with the same formalities required to make a valid will.
Revocation by a properly executed declaration case Yes
Spracklan’s Estate 1938
