Wills and Intestacy

• What is presumed about a testator's mental capacity?

  A testator is presumed to have mental capacity.
• What must a testator understand regarding their act?

  The testator must understand the nature of their act, the extent of their property, and who they would normally give gifts to.
• What happens to a gift if suspicious circumstances are present?

  A gift will fail unless evidence is shown of the testator’s knowledge and approval of the gift.
• What must a solicitor do if they receive a substantial gift while drafting a will?

  The solicitor must get independent legal advice.
• What types of influence are not admitted in will-making?

  Fear, fraud, or undue influence are not admitted.
• What is duress in the context of wills?

  Duress is the fear of force or injury.
• How is undue influence defined?

  Undue influence is more than mere persuasion.
• What are the requirements for a valid will?

  • Must be in writing
  • Signed by the testator or someone directed by them
  • Signature can be a mark
  • Must be signed in the presence of two or more witnesses
  • Witnesses do not need to see the contents of the will
  • Each witness must sign in the presence of the testator
  • Attestation clause may be included
• What happens if a will identifies another document?

  The document must exist on the date of the will and be referred to as existing in the will.
• How can a will be amended?

  • Amendments must be witnessed in the same manner as the entire will
  • Changes are presumed to have been made after execution unless filling in a blank
  • Can be amended/revoked by a codicil
• What happens to a will upon marriage?

  Marriage automatically revokes the will unless drafted to show the testator expected to marry a particular person.
• How does divorce affect a will?

  Divorce treats the former spouse as if they have died.
• What constitutes the destruction of a will?

  Destruction such as burning or tearing to destroy it revokes the will.
• What is the presumption if a will is found mutilated after death?

  It is presumed to have been mutilated with the intention to revoke unless evidence to the contrary is provided.
• What is the doctrine of dependent relative revocation?

  It allows a destroyed will to be given effect if the destruction was based on a future event that did not occur.
• What happens when a new will is created?

  A new will revokes an earlier will to the extent that it is inconsistent.
• What are the characteristics of mutual wills?

  • Reciprocal benefits
  • Agreement not to revoke
  • The second to die can revoke their will, but a constructive trust will be placed on the estate for the beneficiaries harmed by the change
• How are gifts treated in wills?

  • Gifts are treated as if they were given at the moment of death
  • "My object" refers to the object owned at death unless contrary intention is shown
  • "My car" indicates contrary intention unless clear intent is shown
• What is a specific legacy?

  A specific legacy is a specified item, such as an engagement ring.
• What happens if a specific legacy is no longer part of the estate at death?

  The gift adeems or fails.
• What occurs if a gift has changed form?

  The gift does not adeem.
• What happens if there is a change in subject matter or substance of a gift?

  The gift fails.
• What does it mean when a gift lapses?

  The beneficiary has died so gift falls into the residue of the estate
• if a witness attesting a will receives a gift from the will - will the will remain valid?

  The gift will fail to the witness but the will itself will be attested and remain valid
• What the exceptions to a beneficiary or spouse attesting a will?

  • If beneficiary was not married before attesting will and then married after will was attested
  • If will is privileged - does not require witnesses to attest
  • If beneficiary or spouse was a useless witness - I.e will was attested without them witnessing it
  • If they are beneficiary under the will and do not attest it but then later attest a codicil made to the will - their benefit under the will is not affected
  • If witness or their spouse takes their benefit under a secret trust
• how can a former spouse receive a gift under the will of their former spouse?

  If it is written into the will by the testator to disapply s.18A
• What effect does divorce have on appointments under a will?

  AppoinTrent’s of the former spouse will fail I.e if former appointed as guardian of step child
• Will gift made to two or more people as joint tenants lapse if one pre deceased the testator?

  No unless all beneficiaries predecease testator
• if a beneficiary of a class predeceases the testator - will the gift lapse?


  no because they would not be considered a member of that class
• will a gift lapse if an issue of the testator dies before him?

  No as s.33 allows descendents of issue alive at time of testators death to pass to them in equal shares unless contrary intention in the will
• Why is the order of death important when considering the gifts made under a will?

  If beneficiary is seen as surviving the testator their estate will gain whatever gift they would have received
• What is the general rule in relation to the ademption of a gift?

  The general rule of ademption is that if the subject matter of a gift changes name or form, it does not cause the gift to adeem, however if the substance changes it will adeem.
• If a will includes a gift of a shares in a particular company but between attestation and the teststors death the company changed its name or reconstructed how its shares are organised – what effect will this have on the gift?

  the gift will not adeem as it has changed only form and name and remain identical to the shares at time of death
• If a company has been acquired by another company between the attestation and death and the testator has been issued with shares in the acquiring company as compensation - what effect would this have on the testators gift of shares?

  At the time of death, the testator would own shares in a completely different company which would cause the gift to redeem as there has been a change in substance of the gift
• Will a beneficiary be entitled to the subject matter of a gift if it has been destroyed in a disaster which also killed the testator?

  If death occured before destruction - beneficiary can claim on insurance

  However of order is unclear presumption is destruction occurred first and beneficiary has burden to prove testator died first.
• can gifts under a will be made if the estate is insolvent?

  no all gifts will fail
• What is the order that gifts are made from a will?

  1. specific
  2. General
  3. Residue
• What is the order gifts are abated

  1. Assets in residue paid first for liabilities
  2. General gifts used second
  3. Specific gifts afterwards
  4. testator can change order in will
• will an exclusive gift to charity lapse if it has uncertainty of objects?

  No cannot fail for uncertainty of objects
• under what circumstances do the forfeiture rules not apply ?

  Does not apply if killer is found not guilty by way of insanity