Wills: Capacity, Validity, Drafting Flashcards
(53 cards)
Testator must be 18+ unless they are
in the military
common law test for testamentary capacity
Banks v Goodfellow test
Key aspects of Banks v Goodfellow testamentary capacity test
Testator must:
Understand the nature of the act
Appreciate the extent of their property
Be aware of moral claims against their estate
Not be suffering from insane delusions affecting the will
Testamentary capacity, knowledge and approval, must be present at execution unless
the rule in Parker v Felgate applies
Parker v Felgate timing exception for testamentary capacity
A testator who lacks testamentary capacity at the time of execution can still make a valid will provided they:
Had testamentary capacity at the time they gave instructions for the prep of the will;
The will was prepared according to those instructions; and
At the time of execution, the testator understood they were signing a will for which they had previously given instructions
The Golden Rule on testamentary capacity (Kenward v Adams)
When taking instructions for a will from an elderly or seriously ill client, a medical practitioner should be instructed to assess their capacity
Anyone wishing to challenge the validity of the will on the grounds of lack of capacity must provide
evidence sufficient to raise doubt
If sufficient evidence is provided that the testator lacked capacity, the presumption is rebutted and the executor must demonstrate that
the testator satisfied the Banks v Goodfellow test
Which prevails - Mental Capacity Act 2005 or Banks v Goodfellow?
Banks v Goodfellow
When would the courts authorise the execution of a will on behalf of an adult who lacks capacity? (statutory wills)
The court must be persuaded that there are grounds to diverge from the existing testamentary position and that it is in the testator’s best interest to do so
Knowledge and approval
Testator must know and approve of the will’s contents and understand the choices they have made
When will there be no presumption of knowledge and approval?
The testator is blind or illiterate
The will was signed by someone on behalf of the testator
There are suspicious circumstances
When would an affidavit of knowledge and approval be needed when submitting the will to probate?
If there is no presumption of knowledge and approval, and the attestation clause does not address this
Undue influence must go beyond
persuasion
How does undue influence impact wills?
occurs where a testator is coerced into making a will, or including particular terms, against their judgement and contrary to their true intention
whether undue influence has occurred is a question of
fact
Burden of proof for undue influence
Burden of proof lies with the applicant and the court requires high threshold evidence - must be shown that “the facts are inconsistent with any other hypothesis”
Requirement for witnesses of a will
At least 2 witnesses - adults of sound mind, must be physically and mentally present but do not need to know a will is being signed or its terms.
Both witnesses must sign the will in front of the testator, but it is not necessary for each witness to also sign in front of each other.
What does an attestation clause describe?
the circumstances under which the will was executed
Is an attestation clause required?
Not legally required,
however, a properly drafted attestation clause raises a presumption that the will was executed according to the requirements of s 9 WA 1837
If no attestation clause is included, what will be required?
proof of proper execution is required - usually via an affidavit of due execution sworn by the witnesses
Effect of s.15 WA
any gifts to an attesting witness (or their spouse) are void
Should a solicitor provide advice regarding s.15 WA?
Yes, a solicitor may be negligent if they do not provide advice on the effect of s.15
Who is exempt from s.15 WA?
a professional executor will still be paid for their services, even if they are witness the will
