Will I Execution, Alteration, Amendment and Revocation of Wills

Question 1

3 elements for a Will to be recognized as valid:

Answer 1

The testator must have mental capacity and the intention to make a will.

The will must also be duly executed in accordance with s9 Wills Act 1837.

Question 2

Presumptions on testator’s capacity

Answer 2

A testator is presumed to have the necessary mental capacity to make a will unless challenged.

A court may deem a testator to have acted with capacity if the testator did not have adequate mental capacity at the date of execution but when giving instructions to the will drafter

Question 3

Relationship between the will drafter and the testator that may raise suspicion of the capacity of the testator

Answer 3

If there is a substantial gift in the will with the will drafter as the beneficiary.

Consequence: gift will fail unless evidence of the testator’s knowledge and approval of the gift is offered by the testator.

Solicitor as beneficiary should refuse drafting unless the testator has taken independent advice.

Question 4

Grounds for invalidating a Will

4 F

Answer 4

The formalities of s9 Wills Act 1837 were not complied with

It was prepared in suspcisius circumstances

the lack of testamentary capacity

Force
Fear of injury
Fraud
(the above is known collectively as Duress)

Undue Influence: it arises when something overpowers the testators’s volition. It must be something beyond mere persuasion

Question 5

A validly EXECUTED will must be (5)

Answer 5

in writing

Signed by the testator or someone in the testator’s presence whom the testator directed to sign for the testator

Signed by the testator in the presence of two or more witnesses (the witness do NOT need to see the contents of the will or even be told that they are witnessing a will)

Signed by each witness in the presence of the testator

An attestation clause in the prescribed form

Question 6

How to effect a change to a will

Answer 6

A will can be amended after it’s executed only if the change is witnessed in the same manner in which an entire will is witnessed

A will can be amended or partially revoked by a codicil - a separate document which refers to the will and is executed like a will.

Question 7

Methods to revoke a will (3)

Answer 7

A will can only be revoked before the testator’s death.

If a testator marries, unless the will was made with wording that the testator was expecting to marry a particular person and that they intended that all or part of the will should not be revoked by that marriage

if a testator divorces after the will : the law treats the divorced spouse as having died

Destruction of the will by the testator or someone at testator’s direction and in their presence

(Mutlilated Will found after testator’s death will be presumed to have been mutilated by the testator with the intention to revoked unless proven to the contrary)

Question 8

Explain doctrine of dependent relative revocation:

Answer 8

a destroyed will might be given effect if it’s proved that its destruction was contingent on a future event that did not occur (testator was about to write a new will)

Question 9

Does a new will revokes an earlier will by default:

Answer 9

unless there is an express clause of revocation, an new will only supersede to the extent that is inconsistent with the old will.

Question 10

Define mutual Will

Answer 10

Wills written by two or more people with clauses conferring reciprocal benefits and containing an agreement not to revoke)

Question 11

Protection offered by a mutual will

Answer 11

breach of contract claim to alter the will unilaterally (if provisions are made to that effect)

the second to die can technically revoke their will yet a construction trust will be placed upon the estate in favour of any beneficiaries harmed by the changes to order a transfer to that person

Question 12

4 Types of Legacies

Answer 12

A specific legacy: a gift of a specified party of the estate, such as my engagement ring.

A general legacy: is a gift that doesn’t identify a specific item, such as a gift of a BMW car’. (general legacy does not adeem, the estate must provide)

A pecuniary legacy: a gift of cash. demonstrative (a gift of 10k payable out of my NatWest account)

A residuary legacy: residue after expenses of adminstration

Question 13

Explain ademption

Answer 13

when a specific legacy is no longer available when the testator dies, the gift adeems and the named beneficiary does not take anything under that gift

Question 14

Explain Lapse

Answer 14

if the beneficiary passes away before the gift can be conferred by a will, and no substitute beneficiary is named.

The gift will fall into residue.

IF testator has living issues, the gift intended for the pre-deceased issues does not lapse.

Question 15

Explain the law of commorientes

Answer 15

commorientes means simultaneous death. the younger person is to deemed to have survived the elder.

Question 16

what happens if a will provides a gift to the witness

Answer 16

the will will stand but the part for intending a gift to the witness will fail unless there are two other witnesses who are not beneficiaries.

Question 17

Explain rules for gift to a class of beneficiaries

Answer 17

if a gift to a class of beneficiaries is contingent on something (threshold age for vesting), the class will close the moment any member of the class satisfies the condition (so that the interest is now vested - it’s no longer contingent)

Once the class is closed no new member can be added.