Wills

Question 1

Rule for valid will

Answer 1

Capacity + knowledge and approval + signed in accordance with s9 WA.

If signed in accordance with s9, then presumed to be valid unless someone has some evidence to the contrary. If so, then PRs must prove that D had capacity + knowledge and approval.

Question 2

Capacity test

Answer 2

1. Understand nature and effect of will (general understanding of what a will is)
2. Understand extent of property (roughly knows property own)
3. Understand moral claims (knows how many children they have)
4. No insane delusions (exclusions not based on paranoia)

At time of signing unless :

1. had capacity when instructed
2. will prepared in accordance with instructions; and
3. knew signing a will for which they gave instructions

Question 3

KNowledge and approval

Answer 3

T must know and approve of its contents adn understand the choices they made at time of signing unless Parker v Felgate applies.

Question 4

s9 WA requirement

Answer 4

1. Will is in writing
2. D signed will -or- signed by another at D’s direction in D presence
3. It appears D intended by their signature to give effect to will (attestation clause)
4. D signed will or acknowledged signature in the presence of 2 witnesses
5. each W signs or acknowledges their signature in D’s presence

Presumed complied with provided that there is a properly drafted attestation clause

Question 5

Proving coercion or undue influence

Answer 5

No presumption - must prove that T had no genuine choice but to include term / draft will (more than just persuasion)

Question 6

How to incorporate a doc into will

Answer 6

1. Exists at time sign will
2. Will refers explicitly to doc + refers to it being in existence at time of signing

Question 7

Alterations

Answer 7

Alteration is not valid unless attested in accordance with s9 WA (next to amendment or at end with specific reference to amendment) / affidavit evidence confirms there at signing or blank space.

However, if cannot read what is underneath, the original words will not take effect unless they can be deciphered by natural means. May use extrinsic evidence if substitute gift written, D lacked intention or amendment by 3rd party.

Question 8

Effect of codicil

Answer 8

• republishes will
• speaks from date of codicil (Bs / assets)
• if B or spouse signed original may now inherit
• validates will which was not validly executed

Question 9

Destruction and revocation

Answer 9

Destruction (physical act) will revoke will provided intent to revoke (which is presumed unless evidenece to the contrary)

Question 10

Effect of marriage

Answer 10

Revokes all wills and codicils unless made in contemplation of marriage.

Made in contemplation fo marrige if known ceremony to a specific person.

Clause must state
1. marraige to X person at intended ceremony; and
2. States does not wish the will to be revoked by the marriage

Question 11

effect of divorce

Answer 11

Will is valid but takes effect as if ex pre-deceased