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Validity Of Will Notes

LPC Law Notes > Private Client Notes

This is an extract of our Validity Of Will document, which we sell as part of our Private Client Notes collection written by the top tier of Cambridge And Oxilp And College Of Law students.

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VALIDITY OF WILL
STEP 1: CHECK THAT T HAS THE CAPACITY TO MAKE A VALID WILL
LEGAL CAPACITY TO MAKE A WILL
Knowledge and Approval
 T must know and approve of the contents of the will at the time the will is executed
 General presumption that a testator/testatrix who validly executes a will does so with knowledge and approval - Chana v Chana LTL 9/2/2000
 Presumption may be rebutted by evidence and won't apply in following circumstances:
o Blind or illiterate T: revised attestation clause or affidavit evidence required - Rule 1 13, NCPR 1987

Suspicious circumstances - e.g. beneficiary preparing the will

If T is mistaken as to the contents of the will

A mistake in the will of a testator/testatrix may be rectified by the Court under s.20
AJA 1982 if the will fails to carry out T's intentions due to a clerical error or a failure to understand T's instructions
Testamentary Capacity
 T must have the necessary mental capacity to make a will
 Banks v Goodfellow (1870) - test for determining sufficient testamentary capacity
→ T must have "a sound and disposing mind and memory" - must be capable of understanding three things:

1. Nature of the act and its effects

2. Extent of the property of which he is disposing

3. Claims to which he ought to give effect
 BUT rule in Parker v Felgate (1883) - exception if:

1. T had capacity when he gave instruction to a solicitor to draw up a will, and

2. A will was drawn up in accordance with those instructions, and

3. T remembers giving instructions and believes the will to have been drawn up in accordance with those instructions
 Burden of proof rests with the person seeking to prove the will
The Golden Rule:
The Not So Golden Rule -
If there is an aged testator or one who has suffered a serious
Key v Key [2010]:
2 illness, "the making of the will by such a testator ought to be "By definition many witnessed or approved by a medical practitioner who satisfies testators are aged but most himself of the capacity and understanding of the testator, and are of perfectly sound mind records and preserves his examination."
and would justifiably take
Issues with the Golden Rule:
grave offence at being told
 Consent of client they must be examined to
 Will GP respond?
make sure they are compos
 Does GP know the client?
mentis before being
 Does GP really know enough about the law?
allowed to make a will."
 Is it reasonable to expect GPs to do this? Who pays?
Undue Influence and Fraud:
 Undue influence = something that overpowers the volition without convincing the judgement
 Fraud = something that misleads T
 Burden of proof rests with the person making the allegation
Testators Under 18:
A person under 18 cannot make a will.
STEP 2: CHECK THAT T HAS THE INTENTION TO MAKE A VALID WILL
→ must show intention for will to be valid
STEP 3: ENSURE THAT THE REQUIRED FORMALITIES HAVE BEEN COMPLIED WITH

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