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LPC Law Notes Private Client Notes

Validity Of Will Notes

Updated Validity Of Will Notes

Private Client Notes

Private Client

Approximately 235 pages

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The following is a more accessible plain text extract of the PDF sample above, taken from our Private Client Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

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:

  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:

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...

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