Will Validity - Knowledge & Approval

Question 1

What is needed for a valid will?

Answer 1

Testamentary Capacity + Knowledge & Approval + Formal Requirements

Question 2

What does knowledge and approval say?

Answer 2

Testator must have general intention to make testatmentary document and is required to have specific intention to make the particular will they sign - must know and approve of its contents and undertsand the choices they have made.

Must be present at time of execution

one may have testamentray capacity and lack knowledge and capacity

Question 3

What is the presumption of knowledge & approval?

Answer 3

K&A are presumed if testator had testamentary capacity and will was executed in accordnce with requirements in s 9.
if evidence raised soubt as to knowledge and approval, presumption is rebutted and burden of proof shifts to propounder to demonstarte it was present.

no presumption of K&A if testator is blind or illiterate, will was signed on behalf of testator and suspicious circumstances (will was prepared by someone who receives significant benefit)

Question 4

Affidavit of K&A?

Answer 4

if no presumption of K&A and attestation clause (explains circumstances which will was executed) does not address this, an affadavit of K&A would be needed when submitting will to probate.

if presumption of K&A does not apply, may be possible to take steps in advance to mitgate risk of having to prove it was present at a later date - attestation clause can be drafted to reflect steps taken to ensure testator understood document they were signing.

Question 5

Undue influence and duress?

Answer 5

If testator has K&A, but will was made as a result of undue influence or duress, will is not valid as it does not reflect testator’s true intention.

Testator may be unduly influenced in respect of a particular gift which in this case, only that part is invalid but remainder may be given effect to provided omission do not “upset whole tenor of what remains”.

Question 6

What is undue influence?

Answer 6

Undue influence is where testator is coerced into making a will or particular terms against their judegment and true intention.

• goes beyond persuasion - not unlawful to encourage someone to make a will or persuade them that certain provisions should be included.
• no presumption of undue influence - whether undue influence has occured is a question of fact
• burden of prood proving undue influence lies with person making allegation and court requires evidence.
• physical and mental strength of testator are relevant when determining undue influence.

whether or not court considers testator’s will to be fair is irrelevant