Will Validity

Question 1

What happens if a person fails to make a valid will?

Answer 1

Their estate passes under the intestacy rules

Question 2

Is there specific wording required for a will to be valid?

Answer 2

No

Question 3

What is testamentary freedom?

Answer 3

A person has the freedom to leave their property to anyone they choose

Question 4

What age must a testator be to make a valid will?

Answer 4

18 and over - as per s7 Wills Act 1837

Question 5

Is there any exemptions to the required age rule for making a valid will?

Answer 5

Yes - military service is an exemption to the age requirement for a valid will

Question 6

What are the key elements of a valid will?

Answer 6

1. Satisfied age requirement
2. testamentary capacity
3. knowledge and approval
4. formal requirements (under s9 WA 1837)

Question 7

What is testamentary capacity?

Answer 7

A testator must be mentally capable of making a will - this is testamentary capacity

Question 8

What is the Banks v Goodfellow test for?

Answer 8

Banks v Goodfellow is the common law test for testamentary capacity

Question 9

Elements of Banks v Goodfellow that must be satisfied?

Answer 9

The testator must:
1. Understand the nature and effect of making the will
2. appreciate the extent of the property that they are disposing of
3. moral claims - must understand who they ought to owe a moral responsibility
4. must not be suffering from a disorder of the mind

Question 10

Banks v Goodfellow - nature of the act?

Answer 10

The testator must understand that they are signing a document that takes effect on their death and disposes of their property - should be able to understand broad effects of the will

Question 11

Banks v Goodfellow - extent of property?

Answer 11

Testator should have a general recollection of what they own and appreciate the approximate value of the estate - general understanding, not required to recall every item

Question 12

Banks v Goodfellow - moral claims?

Answer 12

The testator should be able to appreciate anyone who they may owe a moral responsibility to - but this doesn’t mean they are required to leave their property to their ‘nearest’

Question 13

Banks v Goodfellow - disorder of the mind?

Answer 13

A testator suffering from insane delusion or if their judgement is generally affected, they do not have testamentary capacity

Question 14

Time requirements for TC?

Answer 14

The testator must have testamentary capacity at the time the will is executed - with the exception of Parker v Felgate

Question 15

General rule in Parker v Felgate?

Answer 15

Where the testator lacks capacity when executing the will, the will is still valid if:
1. thy had TC when giving instruction on the will
2. the will was prepared in accordance with those instructions and
3. at the time of signing, the testator understood that they were signing a will for which they had previously given instruction

Question 16

When does Parker v Felgate apply?

Answer 16

Parker v Felgate can apply where a testator’s TC fluctuates over time, or an unexpected event occurs between them giving instruction and executing the will

Question 17

Examples of fluctuating capacity?

Answer 17

Dementia - a person with dementia may have lucid days where they may satisfy TC
Depression and other mental health issues should also be taken into account when determining TC

Question 18

What is the golden rule?

Answer 18

Kenward v Adams 1975 - when taking instruction for a will from an elderly or seriously ill client, a medical practitioner should be instructed to assess capacity and make contemporaneous record of the assessment and conclusion

Question 19

Is the golden rule legally binding?

Answer 19

No - but it is best practice as it reduces likelihood of disputes over TC in the future

Question 20

Is not following the golden rule automatically poor practice?

Answer 20

No - the practical complications of complying with the rule have been acknowledged and failing the comply is not automatically deemed poor practice

Question 21

Is there a presumption of capacity?

Answer 21

Yes - if the will on the face of it appears to be rational and has been duly executed

Question 22

When is the presumption of capacity rebutted?

Answer 22

When a person has sufficient evidence to raise doubt, the presumption is rebutted and then the validity of the will is challenged

Question 23

Mental Capacity Act 2005

Answer 23

This is the statutory test for mental capacity - it does not override the common law test in Banks, it was intended to tie with it

Question 24

What test would prevail if different outcomes were found - Banks v Goodfellow or MCA 2005?

Answer 24

Banks v Goodfellow would prevail - common law supersedes statue in this case

Question 25

When should a statutory will be made?

Answer 25

The court must be persuaded that there are grounds to diverge from the existing position and that it is in the person's best interests to do so

Question 26

Where does the court derive its power to make a statutory will?

Answer 26

S18 (1) Mental Capacity Act 2005

Question 27

What is the general rule on testamentary capacity and execution of a will?

Answer 27

TC must be present when the will is executed - unless the exceptions in Parker v Felgate apply

Question 28

General rule for testamentary capacity?

Answer 28

TC is presumed where the will is rational and has been duly executed

Question 29

What is knowledge and approval?

Answer 29

The testator must have a general intention to make a testamentary document that disposes of their property - taking effect on their death

Question 30

What is the specific intention requirement?

Answer 30

A testator must have a specific intention to make the particular will that they sign - meaning they must know and approve the content and understand the choices they have made

Question 31

Is there a requirement for knowledge and approval at execution?

Answer 31

Yes - similar to TC, knowledge and approval is required ay execution of a will - unless the exceptions in Parker v Felgate apply

Question 32

Are knowledge and approval presumed?

Answer 32

If the testator has TC and the will was executed in accordance with S9 WA 1837, then knowledge and approval are presumed

Question 33

What rebuts the presumption of knowledge and approval?

Answer 33

Presumption of knowledge and approval is rebutted if there is evidence which raises doubt, and the burden then shifts to those seeking to enforce the will to demonstrate that knowledge and approval was present

Question 34

Exceptions to the presumption of knowledge and approval?

Answer 34

Yes there are some exceptions to the presumption of knowledge and approval: 1. the testator is blind or illiterate 2. the will was signed by someone on behalf of the testator 3. there are suspicious circumstances

Question 35

What would be needed if there is no presumption of knowledge and approval and an attestation clause fails to address this?

Answer 35

An affidavit would be needed when submitting the will to probate - to show knowledge and approval

Question 36

Undue influence and duress - validity?

Answer 36

A will made as a result of undue influence or duress will not be valid as it does not reflect the testator's true intentions

Question 37

Part of a will made as a result of undue influence - validity?

Answer 37

Where part of a will is made as a result of undue influence, the rest of the will may still be valid providing that the omissions 'do not upset the whole tenor of what remains'

Question 38

Key case for undue influence?

Answer 38

Re Edwards [2007] EWHC 1119 (Ch)

Question 39

Key principles in Re Edwards - undue influence

Answer 39

1. undue influence occurs where a testator is coerced into making a will, or including particular terms, against their judgement and contrary to their true intention 2. undue influence goes beyond persuasion

Question 40

Is there a presumption of undue influence?

Answer 40

No - there is no presumption of undue influence in relation to testamentary dispositions - undue influence is a question of fact

Question 41

Where does the burden of proof lie in undue influence cases?

Answer 41

The burden lies with the person claiming undue influence - the court requires evidence

Question 42

What is the threshold for cases of undue influence?

Answer 42

It is not enough to prove facts are consistent with a hypothesis of undue influence - what must be shown is that the facts are inconsistent with any other hypothesis

Question 43

What are the formal requirements under S9 WA 1837?

Answer 43

a. in writing, signed by the testator, or by some other person in his presence and by his direction b. appears that T intended to give will effect by his signature c. signature is made or acknowledged in the presence of 2 or more witnesses present at the same time d. each witness either attests and signs the will, or acknowledges his signature in the presence of T

Question 44

What is an attestation clause?

Answer 44

A clause that describes the circumstances under which the will was executed

Question 45

Is it a legal requirement for a will to have an attestation clause?

Answer 45

No - however an attestation clause raises a presumption that the will was properly executed

Question 46

What is the position if there is no attestation clause?

Answer 46

Where there is no attestation clause, proof of proper execution is required - this is usually an affidavit

Question 47

Attestation clauses and special circumstances

Answer 47

Where there are special circumstances, i.e T is blind, the attestation clause should make reference to this and provide evidence of the requisite knowledge and approval

Question 48

Gifts to attesting witnesses?

Answer 48

Under s15 WA, any gifts made to an attesting witness (or their spouse) are void - therefore if a beneficiary (or spouse) acts as a witness, they can't inherit