Will Validity - Capacity

Question 1

What is needed to make a valid will?

Answer 1

Testamentary capacity + Knowledge & Approval + Formal Requirement/s 9 Wills Act

Must be aged 18 or over

exception to those in military

Question 2

What is the common law test for testamentary capacity

Answer 2

Testator must:
1. understand nature of the act and its effects
2. appreciate extent of property of which they are disposing
3. understand and appreciate moral claims to which they ought to give effect and have no disorder of the mind.

Banks v Goodfellow

Question 3

What does ‘nature of act’, ‘extent of property’, ‘moral claim’ and ‘disorder of the mind’ mean?

Answer 3

• Nature of act: testator must understand they are signing a document that takes effect on death and disposes property - should understand broad effects of will.
• Extent of property: testator should have general recollection of what they own and appreciate approx value of their estate and assets
• Moral claims: testator should appreciate anyone to whom they owe a moral responsibility.
• Disorder of the mind: testator suffering from insane delusions affecting their judgement generally or in relation to specific disposition in the will, lacks testatmentary capacity

Question 4

When must the testator have testamentary capacity?

Answer 4

At the time the will is executed.
But exception to this requirement is where a testator who lack testatmentray capacity at time of execution can still make a valid will if they:
* had testamentary capacity at time they gave instructions for prepartation of will and
* will was prepared in accordance with those instructions and
* at time of execution, testator understood they were signing a will for which they had previously given instructions.**

Applies where testator’s testamentary capacity fluctuates over time (e.g., dementia) or unexpected event occurs between giving instructions and executing the will

Question 5

What is the golden rule?

Answer 5

When taking instructions from a client for a will who is elderly or seriously ill, a medical practitioner should be instructed to make an assessment of testator’s capacity and a record of assessment and conclusion should be made - not a legal obligation but considered best practice.

Question 6

What is the presumption of capacity?

Answer 6

Burden of proof lies in propounder (person seeking to admit will to probate) - capacity is presumed if the will on the face of it appears rational and has been duly executed.

Anyone who wishes to challenge validity of will on grounds of capacity must provide evidence sufficient to raise doubt - if evidence is provided, presumption is rebutted and burden of proof is on propounder to demonstrate testator satisfied capcaity test.

Question 7

Mental Capacity Act 2005

Answer 7

MCA is the general test of a person’s capacity to make decisions however, this does not override or modify the common law test in Banks - rule in Bank and relevant case law remains correct and when both conflicts, common law test prevails.

Question 8

Statutory wills

Answer 8

While the rule is, if a client lacks testamentary capacity, they cannot make a valid will - it is possible for courts to authorise execution of will on behalf of an adult who lacks capacity to make one themselves (s 18MCA) - court must be persuaded that there are grounds to diverge from existing testamentary position and it is in person’s best interest to do so.