What happens to the assets of the estate if there is a valid Will?
The assets capable of passing under the Will are distributed in accordance with the terms of the Will
What happens if the Will fails to dispose of all of the assets of the deceased?
Partial intestacy
What happens if there is no Will?
Intestacy
Are specific words or formats to be used when creating a Will?
No
Do testator’s have to leave property to certain people?
No they have testamentary freedom to leave property to whomever they choose
What age do you have to be to make a valid Will?
18 or over (unless in military service)
What three legal requirements must be present?
- testamentary capacity
- knowledge and approval
- formal requirements s 9 Will Act 1837
What is testamentary capacity?
A testator must be mentally capable of making a Will
What is the test for testamentary capacity in Banks v Goodfellow?
Testator must:
- understand the nature of the act and its effects
- appreciate the extent of the property of which they are disposing
- understand and appreciate the moral claims to which they ought to give effect, and have no disorder of the mind that perverts their sense of right or prevents exercise of their natural faculties in disposing of property by Will
To what degree must the testator understand the nature of the act for testamentary capacity under Banks v Goodfellows?
- testator must understand that they are signing a document that takes effect on death and disposes of their property
- testator should be able to understand the broad effects of the will but is not required to understand every detail
To what degree must the testator understand the ‘extent of property’ for testamentary capacity under Banks v Goodfellows?
- T should have general recollection of what they own and appreciate approximate value of their estate and relative value of its assets
- T is not required to recall every item or know the precise value of each
- test of general understanding rather than perfect memory
To what degree must the testator understand ‘moral claims’ for testamentary capacity under Banks v Goodfellows?
- T should be able to appreciate when deciding who to benefit/extent anyone to whom they owe a moral responsibility to
- moral responsibility likely to be owed to those ‘nearest to them in kindred and who in life have been objects of their affection’
What would amount to a disorder of the mind that affects testamentary capacity?
- 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 if the delusion is unconnected with and has no effect on the terms of the will
When must a testator have testamentary capacity?
At the time the Will is executed
What is the exception to the rule that a testator must have testamentary capacity at the time the Will is executed in Parker v Felgate?
Can still make a valid will provide T
- had testamentary capacity at the time they gave instructions for the preparation of the Will and
- the Will was prepared in accordance with those instructions and
- at the time of execution the testator understood they were signing a will for which they had previously given instructions
Is capacity something you either always have or have not?
No capacity can fluctuate
- testator can be temporarily incapacitated
What is best practice, ‘the golden rule’, where there may be a question in relation to testamentary capacity?
Medical practitioner should be instructed to make an assessment of the testator’s capacity and a contemporaneous record of that assessment and conclusion should be made
Will following the golden rule in relation to capacity mean the testator beyond doubt had capacity at the time in law?
No - but it will be useful evidence should a dispute arise later
Who does the burden of proof relating to capacity lie with?
The propounder of the Will (person seeking to admit the Will to probate)
What presumption is there in relation to capacity?
If the Will on the face of it appears rational and has been duly executed, then presumption that T had capacity
What must a person do who wishes to challenge the validity of a Will on grounds of capacity?
They must provide sufficient evidence to rebut presumption of capacity
What is the effect of a challenger to a Will providing sufficient evidence to rebut presumption of capacity?
Then burden of proof reverts back to propounder of Will to demonstrate T had capacity
Is the threshold to the test in Banks v Goodfellow’s low or high?
Low - T may lack ability to manage their own affairs and require help with day-to-day activities and still have testamentary capacity to make a Will
What is the relationship between the testamentary capacity test in Banks v Goodfellows and the statutory test in the Mental Capacity Act 2005?
- statutory test does not override common law test
- they are meant to complement each other
- if application of the two tests produces different results then the common law test is to prevail
-
Distribution of Estates and Intestacy25
-
Succession Estate7
-
Post-Grant Administration Steps45
-
Role of Personal Representative71
-
Inheritance Tax75
-
Tax Planning and Anti-Avoidance42
-
Will Validity51
-
Will Amendment46
-
Ethical and Professional Conduct Issues8
-
Will Drafting55
-
Pre-Grant Administration Steps71
-
Reporting to HMRC and Payment of IHT/Applying for Grant39
-
Inheritance (Provision for Family and Dependants) Act 197533
-
Post Death Changes25
-
Administration Overview7
