Oxbridge Notes | Validity Of Will

VALIDITY OF WILL

STEP 1: CHECK THAT T HAS THE CAPACITY TO MAKE A VALID WILL
LEGAL CAPACITY TO MAKE A WILL
1	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: Blind or illiterate T: revised attestation clause or affidavit evidence required – Rule 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
2	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: Nature of the act and its effects Extent of the property of which he is disposing Claims to which he ought to give effect BUT rule in Parker v Felgate (1883) – exception if: T had capacity when he gave instruction to a solicitor to draw up a will, and A will was drawn up in accordance with those instructions, and 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: If there is an aged testator or one who has suffered a serious illness, “the making of the will by such a testator ought to be witnessed or approved by a medical practitioner who satisfies himself of the capacity and understanding of the testator, and records and preserves his examination.” Issues with the Golden Rule: Consent of client Will GP respond? Does GP know the client? Does GP really know enough about the law? Is it reasonable to expect GPs to do this? Who pays?	The Not So Golden Rule – Key v Key [2010]: “By definition many testators are aged but most are of perfectly sound mind and would justifiably take grave offence at being told they must be examined to make sure they are compos mentis before being allowed to make a will.”
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
S.9 Wills Act 1837 – for a will to be valid, it must be:
1	In writing Handwritten, dictated, or word-processed Ink or pencil – BUT may have problems if there is both ink and pencil On any material (Re Barnes (1926) 43 TLR 71 – will was written on an egg shell)
2	Signed Either by T or by some other person in their presence and by their direction Meaning and form of ‘signature’: In the Goods of Savoy [1851] 15 Jur 1042 – the signatory’s initials In the Estate of Cook [1960] 1 All ER 689 – the phrase‘your loving...

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:
- Blind or illiterate T: revised attestation clause or affidavit evidence required – Rule 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:

Nature of the act and its effects
Extent of the property of which he is disposing
Claims to which he ought to give effect

BUT rule in Parker v Felgate (1883) – exception if:

T had capacity when he gave instruction to a solicitor to draw up a will, and
A will was drawn up in accordance with those instructions, and
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:

If there is an aged testator or one who has suffered a serious illness, “the making of the will by such a testator ought to be witnessed or approved by a medical practitioner who satisfies himself of the capacity and understanding of the testator, and records and preserves his examination.”

Issues with the Golden Rule:

Consent of client
Will GP respond?
Does GP know the client?
Does GP really know enough about the law?
Is it reasonable to expect GPs to do this? Who pays?

The Not So Golden Rule – Key v Key [2010]:

“By definition many testators are aged but most are of perfectly sound mind and would justifiably take grave offence at being told they must be examined to make sure they are compos mentis before being allowed to make a will.”

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

S.9 Wills Act 1837 – for a will to be valid, it must be:

In writing

Handwritten, dictated, or word-processed
Ink or pencil – BUT may have problems if there is both ink and pencil
On any material (Re Barnes (1926) 43 TLR 71 – will was written on an egg shell)

Signed

Either by T or by some other person in their presence and by their direction
Meaning and form of ‘signature’:
- In the Goods of Savoy [1851] 15 Jur 1042 – the signatory’s initials
- In the Estate of Cook [1960] 1 All ER 689 – the phrase‘your loving...

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