Example Conference Contesting Validity Of Will Notes

Contesting the validity of a Will

1. Lack of “testamentary capacity”

2. Lack of valid execution (s9 WA 1837)

3. Lack of knowledge and approval of the contents of a will

4. Undue influence

5. Fraud or forgery

6. Document not a will

7. Document revoked by later will or subsequent action

8. Person prevented from leaving certain assets in their will due to a prior agreement

9. The true meaning of the will, where it is ambiguous

Conference Matters:

1. Whether the will can be contested, and, if so, on what grounds

2. Whether a gift can be challenged

3. In outline, on the Court procedure for any challenges to the will

Contesting the Validity of the Will

Lack of “testamentary capacity”

For a person to make a valid will they must be of sound mind. The legal test is set down in the 1870 case of Banks v Goodfellow:

• Whether the testator understood the nature of the act and its effects

The testator must have understood such things as:

• that theWillcould be revoked

• that it operated only on death

• the rationale behind the appointment of executors

• the effect of beneficiaries predeceasing them

• Whether the testator understood the extent of the property of which they were disposing

  • such as whether the testator had any property in joint names or in trust that would not have been affected by theWill

• Whether the testator was able to comprehend and appreciate the claims to which they ought to give effect

  • The irrationality or eccentricity of theWillraises no adverse inference if the testator appreciated their moral obligations to those it could reasonably be said they may owe a duty. Leaving nothing to their spouse and/or children is not a sign of a lack of testamentary capacityas long as the testator knew of their existence and realised they were excluding them after reasoned reflection

• Whether the testator was subject to an insane delusion that would influence theirWillin disposing of their property and bring out a disposal of it that if the mind had been sound, would not have been made

  • Muchwilldepend on the form that the delusion took. If the delusion did not affect the manner in which the testator disposed of their property, itwillnot invalidate theWill. For example, a fear of evil spirits had no effect on the disposition of a testator's property nor on his decision on beneficiaries and theWillwas held valid

  • Where an irrational aversion to his daughter directly affected a testator's decision on the disposition of his assets, theWillwas ruled invalid (Dew v Clark(1826) 3 Add 79)

For the purposes ofMCA 2005, s 2a person lacks thecapacityto make a decision if they are unable to:

• understand the information relevant to the decision

• retain that information

• use or weigh that information as part of the process of making the decision or

• communicate his decision (whether by talking, using sign language or any other means)

The capacity to make a will may therefore vary depending on the complexity of the testators affairs and family situation. It may also be dependent on the degree of assistance and explanation which the testator is afforded at the time of making the will.

I understand your instructions:

How was your relationship with XX?

How was XX acting?

How was s/he coping with the illness?

Was s/he suffering from any delusions?

How was his/her memory?

Physically and mentally weak – explanation needed

Family record of mental illness?

I understand that the nurse ensured that s/he took her medication at the correct time, how about day to day activities – was s/he able to cope with that by him/herself?

What were the nurses ultimate duties?

Is the nurse present/required at all times?

How was his/her interaction with the nurse?

How was his/her interaction with your sister?

Key v Key [2010]: A husband gave instructions for a new will just a week after his wife of 65 years had passed away. Understandably he was devastated because of the loss of his wife and it was held that his devastation led to symptoms akin to dementia leading his will to be set aside.

Evidence to establish capacity:

• Medical Records may provide clues

• Will making file

• Evidence of anyone who knew the testator

• Requirement that solicitor prepare statement as to circumstances of the preparation of the will.

If proven the whole Will will be invalid. This is subject to the exclusions – Statutory Wills; Parts of wills not affected by delusions.

Lack of valid execution

In a claim for lack of valid execution, also known as ‘lack of due execution’, a will is invalid if it fails to meet one or more of the following requirements (as set out in s.9 Wills Act 1837):

• The will must be in writing and signed by the testator or signed by someone else in their presence, who has been directed to do so by the testator.

• It must appear that the testator intended by their signature to give effect to the will.

• The testator’s signature must be made or acknowledged in the presence of at least two witnesses, present at the same time.

A will must be:

1. In writing

2. Signed by the testator

3. That signature must be made or acknowledged in the presence of two (2) witnesses present at the same time

4. Those witnesses must sign the will in the presence of the testator

The witnesses need not know that the document is a will. It is sufficient that the witnesses see the testator in the act of writing his signature, although they ever see the signature and do not know what he is writing But the requirement is not satisfied if a witness, although present in the same room, is not aware that the testator is writing. Furthermore, if a witness leaves before the testator completes his intended signature, the requirement is not satisfied [Re Colling [1972] 1 WLR 1440].

I understand that you were present during the signing

Were you present the whole time?

Who else was present?

Witnesses

Your relationship with them?

How did they act?

How did they carry themselves?

How XX interaction with them?

Writing

Confirm that it is in writing.

Signed by testator

Confirm that XX signed the will

Signature made or...

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