Wills: validity

Question 1

What is “testamentary freedom”?

Answer 1

The ability of a testator to leave property to whomever they choose, without having to make provision for family members (unlike jurisdictions with forced heirship).

Question 2

What is the minimum age to make a valid will?

Answer 2

18 years old (Wills Act 1837), with exceptions for those in military service.

Question 3

What is testamentary capacity?

Answer 3

The mental capability required to make a will.

Question 4

What are the four requirements for testamentary capacity under Banks v Goodfellow?

(should know name of case apparently)

Answer 4

Testator must:

1) Understand the nature of the act and its effects.

2) Appreciate the extent of their property.

3) Understand the moral claims they should consider.

4) Not suffer from a disorder of the mind affecting the will.

Question 5

What does “understand the nature of the act” mean?

(testamentary capacity)

Answer 5

Testator must understand they are making a document that disposes of property upon death; need only a broad understanding, not every detail.

Question 6

What does “appreciate the extent of property” mean?

(testamentary capacity)

Answer 6

Testator should recall broadly what they own and the approximate value of their estate; perfect memory not required.

Question 7

What does “understand moral claims” mean?

(testamentary capacity)

Answer 7

Testator should recognise those to whom they owe moral responsibility (e.g., family), though they are not obliged to leave them anything.

Question 8

How does a disorder of the mind affect testamentary capacity?

Answer 8

Insane delusions affecting judgement or the will mean a lack of capacity. Delusions unrelated to the will do not affect capacity.

Question 9

When must testamentary capacity exist?

Answer 9

At the time the will is executed, unless the Parker v Felgate exception / rule applies, where:

A will is nonetheless valid if:

1. The testator had capacity when giving instructions.
2. The will was prepared according to those instructions.
3. At execution, the testator understood they were signing the instructed will.

(should know case name btw)

Question 10

Can capacity fluctuate?

Answer 10

Yes — e.g., dementia patients may have lucid intervals, or capacity may be temporarily affected by events like grief or depression.

Question 11

What is the “Golden Rule”?

(testamentary capacity)

Answer 11

Best practice: if a client is elderly or seriously ill, a doctor should assess and record testamentary capacity when a will is made.

However, not legally binding ! Following it reduces disputes but does not prove capacity; failure to follow it does not automatically show poor practice.

NOTE : if want to get doctor involved, do need to get clients CONSENT

Question 12

How does the presumption of capacity work?

Answer 12

If a will appears rational and is duly executed, capacity is presumed.

Those challenging it must provide evidence to raise doubt; then the burden shifts back to the propounder (meaning EXECUTOR) to prove capacity (under Banks v Goodfellow elements.)

Question 13

What is the threshold for testamentary capacity?

Answer 13

Relatively low — a person may lack ability to manage day-to-day affairs but still make a valid will.

Question 14

What is the relationship between testamentary capacity and the Mental Capacity Act 2005?

Answer 14

The MCA introduced a general statutory test of capacity, but the specific common law test in Banks v Goodfellow still applies and prevails in case of conflict.

Question 15

What is a statutory will?

Answer 15

A court-authorised will (s.18(1) MCA 2005) for someone lacking capacity, if it is in their best interests (e.g., intestacy would apply, or changed circumstances).

(If someone never had testamentary capacity.)

Question 16

What three requirements must always be met for a valid will?

Answer 16

1) Testamentary capacity.

2) Knowledge and approval of contents.

3) Compliance with s9 Wills Act 1837 (formalities).

Question 17

What does “knowledge and approval” mean?

Answer 17

The testator must know and approve of the contents of the will and intend to give effect to it by their signature.

Not the same as testamentary capacity !! Can have testamentary capacity and not knowledge and approval.

Question 18

When must knowledge and approval be present?

Answer 18

At execution, unless the Parker v Felgate exception applies. (same as for testamentary capacity)

Question 19

When is knowledge and approval presumed?

Answer 19

Where the testator had testamentary capacity and the will is duly executed, unless there are special factors raising doubt.

Question 20

When is knowledge and approval not presumed?

Answer 20

If:

• Testator is blind or illiterate.
• Will signed by someone on their behalf.
• Suspicious circumstances (e.g. drafted by a major beneficiary).

Question 21

What is an affidavit of knowledge and approval?

Answer 21

A sworn statement submitted to probate to prove the testator knew and approved the will’s contents where the presumption does not apply.

Question 22

How can risks of challenge be reduced if the testator cannot read/understand the will?

Answer 22

By adapting the attestation clause to show steps were taken (e.g. will read aloud, translated, or signed on their behalf with approval).

Question 23

What effect do undue influence or duress have on a will?

Answer 23

The will (or the affected gift) will be invalid because it does not reflect the testator’s true intention.

(At the knowledge and approval stage)

Part or whole of will can be struck out because of this. Where only part struck out - rest stands only where what remains still makes sense overall.

Question 24

What is undue influence in wills?

Answer 24

Coercion where the testator is forced against their true intention. The testator does not act as a free agent.

Not enough that merely persuades the testator. It is lawful to persuade or encourage; undue influence requires coercion that overbears the testator’s will.

Question 25

Is there a presumption of undue influence in wills?

Answer 25

No. Unlike lifetime gifts, undue influence must be proved with evidence.

Question 26

Who bears the burden of proof for undue influence?

Answer 26

The person alleging it, and and when proving it not enough to show that facts are consistent with hypothesis of undue influence, instead need to show that facts are inconsistent with any other hypothesis. Courts are very cautious : allegations often fail unless have strong evidence.

Question 27

What factors affect whether influence amounts to coercion?

Answer 27

The testator’s physical and mental strength; weaker testators may be more easily overborne.

Question 28

Does fairness of the will matter when considering undue influence?

Answer 28

No. The issue is whether the testator acted freely, not whether the will is fair.

Question 29

What are the four core requirements under s9 Wills Act 1837?

Answer 29

(a) In writing and signed by the testator (or another in their presence and at their direction); (b) Signature intended to give effect to the will; (c) Signature made/acknowledged in presence of 2+ witnesses present at same time (so ok if not signing in front of both, sufficient if acknowledges after in presence of both); (d) Each witness signs/acknowledges signature in presence of testator (here doesn't need to be at same time.) (Also note here that witnesses don't even know what they are signing / what is being signed !!)

Question 30

What counts as “in writing” and “signed” for s9?

Answer 30

Writing includes handwritten, typed, printed, any language. Any “mark” may be valid if intended as signature. Preferable for testator to use normal signature. Another person may sign in testator’s presence and at their direction.

Question 31

How must intention to give effect to the will be shown? (s9 Wills Act 1837)

Answer 31

Testator’s signature must show intention to validate will. Signature at end is usually sufficient; signature at beginning or middle may be problematic.

Question 32

What are the witness requirements under s9 Wills Act 1837?

Answer 32

Testator must sign/acknowledge in presence of at least two witnesses present together. Witnesses must be physically and mentally present, but need not know contents of the will. Each witness must sign or acknowledge their signature in the presence of the testator. They do not need to sign in front of each other.

Question 33

What is an attestation clause and why is it important?

Answer 33

It records circumstances of execution. Not legally required, but a proper clause raises presumption of due execution. Without it, affidavit of due execution may be needed.

Question 34

How should attestation clauses be adapted in special circumstances?

Answer 34

Where testator is blind, illiterate, or unable to sign, clause should reflect that will was read to them and understood before signature.

Question 35

What does s 15 Wills Act 1837 provide about witnesses who are beneficiaries?

Answer 35

If a beneficiary (or their spouse/civil partner) witnesses, the will remains valid but the gift is void. Appointment as executor still stands. However, exception to this: Professional executors (entitled to charge fees) are not caught. Also, if two other unaffected witnesses exist, or a codicil later confirms the gift, the gift is saved.

Question 36

What are a solicitor’s duties in relation to execution of wills?

Answer 36

Solicitors should advise on correct process, ensure proper execution (ideally in their presence), and record witness details. Failure may amount to negligence.

Question 37

What should an attestation clause include? / how should it be drafted?

Answer 37

It should record that the will was signed by the testator in the presence of both witnesses, and then signed by both witnesses in the testator’s presence. Example wording: “Signed by the above named [testator] in our joint presence and then by us in his/her presence.”