WAE

Question 1

What is testamentary freedom?

Answer 1

The testator (will maker) can leave their property to whomever they want

Question 2

To make a valid will, a testator must:

Answer 2

• Be 18 or over (with exceptions for married minors and those in the military)
  
  • And must satisfy ALL of the following legal requirements:
    ○ Testamentary capacity
    ○ Knowledge and approval
    ○ Formal requirements (s9 Wills Act 1837)

Question 3

Which case set out the common law test for testamentary capacity?

Answer 3

Banks v Goodfellow

Question 4

What is the common law test?

Answer 4

a testator must:
1. Understand the nature of the act and its effects
2. Appreciate the extent of the property of which they are disposing
3. Understand and appreciate the moral claims to which they ought to give effect;
4. and have no disorder of the mind that perverts their sense of right or prevents the exercise of their natural facilities in disposing of property by will

Question 5

What does nature of the act mean?

Answer 5

A testator must understand that they are signing a document that takes effect on death and disposes of their property.

A testator should be able to understand the broad effects of the will but is not required to understand every detail.

Question 6

What about extent of property?

Answer 6

A testator should have a general recollection of what they own and appreciate the approximate value of their estate and relative value of its assets.

A testator is not required to recall every item or know the precise value of each.

The test is one of general understanding rather than perfect memory.

Question 7

Moral claims?

Answer 7

When deciding who to benefit and to what extent the testator should be able to appreciate anyone to whom they owe a moral responsibility.

In Banks v Goodfellow, it was thought most testators would make provision for those ‘nearest to them in kindred and who in life have been the objects of their affection’ but there is no requirement for the testator to leave those people anything.

Question 8

disorder of the mind?

Answer 8

A testator suffering from insane delusions, affecting their judgement generally or in relation to specific dispositions in the will, lacks testamentary capacity.

A testator may be suffering from an insane delusion and still have testamentary capacity provided that delusion is unconnected with and has no effect on the terms of the will.

Question 9

What are the timing requirements for testamentary capacity?

Answer 9

A testator must have testamentary capacity at the time the will is executed.

Question 10

Are there any exceptions to the timing requirement for test. capacity?

Answer 10

A limited exception - established in Parker v Felgate.

A testator who lacks testamentary capacity at the time of execution can still make a valid will provided they:

1. Had testamentary capacity at the time they gave instructions for the preparation of the will; and
2. The will was prepared in accordance with those instructions; and
3. At the time of execution the testator understood they were signing a will for which they had previously given instructions

Question 11

What about if a testator’s test. capacity fluctuates over time?

Answer 11

The exception may apply. It normally fluctuates due to illness or an unexpected event occurs between giving instructions and executing the will which means a person no longer satisfies the test.

Question 12

What did Key v Key say?

Answer 12

A testator may temporarily lack capacity as a consequence of a particular life event
○ In Key v Key the testator’s wife died a week before he made his will and the testator was found to lack capacity due to the effect of grief on his mental state

Question 13

What is the golden rule?

Answer 13

Kenward V Adams established the “golden rule” - when taking instructions for a will from a client who is elderly or seriously ill, a medical practitioner should be instructed to make an assessment of the testator’s capacity and a contemporaneous record of the assessment and conclusion should be made.

	○ This is not a legal obligation BUT is considered best practice
	○ Following the rule doesn’t confirm the testator definitely had testamentary capacity - it's to reduce the likelihood of future disputes
	○ Complying with the rule may involve an awkward convo with the client but that's not a reason to avoid it
	○ Practical complications involved - e.g. finding a medical practitioner willing to carry out the assessment have been acknowledged (Wharton v Bancroft) and a failure to comply will not automatically demonstrates poor practice

Question 14

Presumption of capacity

Answer 14

Burden of proof of capacity technically lies with the propounder of the will (person seeking to admit the will to probate, normally the executor).
○ However, capacity is presumed if the will, on the face of it, appears rational and has been duly executed