Wills s1-5

• Testator


  Person making the will
• Requirements for a valid will

  • Testator must have had capacity at the time the will was made
  • Testator must have intended to make a will
  • Will must be executed in accordance with certain formalities
• Capacity


  Testator must be at least 18 and must have had mental capacity
• Privileged wills exception: Armed forces, active service or seamen at sea
• Presumption of mental capacity

  Testator is presumed to have had mental capacity unless someone challenges this to prove the testator lacked capacity
• Burden of Proof


  On the person who contests that the testator lacked capacity
• Test for Capacity


  Testator must be unable to make a decision for themselves in relation to the matter in question, due to an impairment of, or a disturbance in the functioning of, the mind or brain
• Common Law test for mental capacity

  • Mental capacity is presumed unless there is evidence that someone may be lacking capacity (mostly in cases concerning elderly people)
  • Acting lawyer needs to provide more detailed information on the consequences of the will and ensure the testator fully appreciates this or the lawyer will be negligent in carrying out her duties
• Testator must understand


  • Nature of the act (that they were making a will and its effects)
  • The extent of their property
  • Claims to which they ought to give effects (who would normally be a person a testator would ordinarily give gifts to – only that the testator understood who these persons would be)
• Material Time


  Mostly when the testator executed (signed the will)
• Exception: If the testator lacked capacity but had sufficient capacity when giving instructions to the will drafter and if the will was prepared in accordance with those instructions at the time of execution, the testator understood they were signing a will for which instructions had previously been given, the testator will be deemed to have acted with capacity
• Intention


  Testator must have had a general intention to make a will and a specific intention to make the particular will (testator must have known and approved the contents of the will when they executed it)
• Rebuttable Presumption of Knowledge and Approval


  There is a general rebuttable presumption of knowledge and approval that the testator had the required mental capacity. The challenger has the burden of proof of proving lack of proper intention – usually known that the testator made the will as a result of fear, fraud, undue influence of mistake.
• Presumption does not apply in 2 circumstances: if the testator is blind or illiterate, or the will is signed on the testator's behalf; and if there are suspicious circumstances – i.e. where the drafter substantially benefits from the will
• Factors to consider in deciding whether the will was invalid

  • Whether the will is short and easy to understand
  • Whether the testator was literate
  • Surrounding facts, such as whether the testator asked two people to witness the document, indicating the testator knew it was a will
  • Whether there are any suspicious circumstances surrounding the will, such as whether a beneficiary procured the will
• It is sensible to have a policy of refusing to act when a client proposes to make a gift of significant value to a fee earner in a firm (or a member of their family) unless the client seeks independent legal advice
• Duress


  A will that is made as a consequence of force, fear, fraud or undue influence, is not regarded as the act of the testator and is not admitted to probate
• A will that has been made as a result of duress will only be valid if a court pronounces it valid and issues a grant in solemn form
• Undue Influence


  This is something which overpowers the volition of the testator. It is permissible to persuade a testator but not to coerce them. Must show more than persuasion (must prove that there was coercion or pressure that overpowered the freedom of action of the testator)
• Undue influence is not presumed but the court will intervene if the testator surrendered to intolerable pressure. The court is more likely to find undue influence when the testator is physically or mentally weak.
• Formalities s 9 Wills Act 1837

  • Will must be in writing (handwritten, typed or printed as opposed to oral)
  • Signed by the testator or by someone in the testator's presence and by their direction in a way that makes it appear the testator intended the signature to give effect to the will
  • Signed or acknowledged by the testator in the presence of two or more witnesses present at the same time
  • Signed by each witness in the presence of the testator (no need for other witnesses)
• Not applicable to privileged wills – can be made informally, even orally
• Attestation Clauses


  Usually included to confirm the formality requirements. A typical clause states, "Signed by the testator in our presence and then by us in his".
• If an attestation clause is not included in a will, the proponent of the will (that is, the person offering the will into probate) must offer proof that these formalities were followed—usually in the form of having one of the witnesses testify.
• Special Attestation Clauses


  • Necessary for a blind or illiterate testator (evidence that it was read to them, they understood and approved its contents, and they signed or it was signed by another in the testator's presence and at his direction)
• Signature Requirements


  Liberal interpretation of what amounts to a signature (cross, initials, stamp, unfinished signatures)
• What may be sufficient as a signature- (liberal rules on signatures)

  • Initials
  • A stamped signature
  • A mark such as a cross
  • An unfinished signature
  • A signature in pencil
  • The words "your loving mother"
• Signature does not need to be a formal signature of one's name, can be any of the above
• Placement of Signature on Will

  Signature can be placed anywhere. If the will is handwritten by the testator and begins, "I [the testator's name]", this line may serve as the signature.
• Another Person May Sign on Testator's Behalf


  Another person other than the testator may sign on the testator's behalf provided the signature is made in the presence of, and by the direction of, the testator. The person signing may be one of the witnesses.
• Signing on behalf of testator

  • The testator is able to read but unable to sign: "The testator being [temporarily] unable to sign his name [because of an injury to his hand], this will was read by the testator and was signed by the testator with his mark in our presence and attested by us in the presence of the testator and in the presence of each other".
  • Another signs on behalf of a testator who cannot read or write: "Signed by X with the name of the testator (the will having been previously read over to him by me [X] when he seemed thoroughly to understand and approve the same) in his presence and by his direction and in our presence and then signed by us in his presence".
  • The testator signs with his mark: "Signed by the testator with his mark (he being otherwise unable to sign his name), the will having previously been read over to him by me the undersigned [X] when he seemed thoroughly to understand and approve the content of the same in our presence and then signed by us in his presence".
• Witness Requirement


  • No formal requirements about the capacity of a witness, but they must be capable of understanding the significance of being a witness to a signature. The witnesses do not need to see the contents of the will or even know that the testator is signing a will. A blind person is incapable of being a witness to a signature, as the person's blindness prevents them from witnessing the visible act. Likewise, a mentally unsound person may not serve as a witness, but a witness's subsequent loss of mental capacity does not affect the validity of a will that was witnessed by a person who was competent at the time of the witnessing. An illiterate person is capable of being a witness, provided the person is aware that the testator is signing the document. A beneficiary of a will (or their spouse) should not be a witness.
• Incorporation by Reference


  A will may identify another document that, effectively, becomes part of the will. Such a document must exist at the date of the will and be referred to in the will as so existing— otherwise, it cannot be incorporated. A future intention to make the list, schedule, or memorandum does not suffice. Reference document must be existing at the time the will is executed.
• When was an alteration made?

  The alteration will be valid if it can be proved that it was made before execution. Can be shown through statements from the witnesses or initials of the testator and their witnesses adjacent to the alteration, provided that the will reads naturally after the amendment.
• If Made After Execution Without Proper Formalities


  If you are presented with a will with words crossed out and it can't be proved the alteration occurred before execution or with proper formalities, the original gift is to apply. Generally, an unattested alteration is presumed to have been made after execution unless it is filling in a blank space in a will form.
• Unexecuted alteration


  Alteration made without proper formalities (e.g. drawing a line through a gift amount and writing a new amount)
• Executed alteration


  Alteration made with proper formalities (e.g. drawing a line through a gift amount, writing a new amount, and having it signed and witnessed)
• Obliteration


  Completely obscuring the original wording so it is illegible
• Dealing with an alteration in a will


  1. Try to make out the original wording by natural means (e.g. magnifying glass)

  2. If original wording not apparent, admit the will with a blank space where the words are obliterated
• Alterations to a will

  • Line through "£100,000" and write "£200,000" (unexecuted alteration, original gift of £100,000 stands)
  • Line through "£100,000", write "£200,000", sign and witness (executed alteration, gift is £200,000)
  • Thick line through "£100,000" to make it illegible (obliteration, original gift fails)