Wills
Validity of Wills - How Property Passes on Death
Joint property Held as JT:
- On death the interest passes by survivorship to the surviving joint tenant
Held as TC:
- The share of the tenant passes on their death under their will
Insurance policies Where a person takes out a life assurance policy
- The benefit of the policy belongs to the deceade’s
- The policy will be paid to the deceased’s PRs who will distribute the money
according to the terms of the will or intestacy rules
Where a life assurance policy is writted in trust for the benefit of someone else
- The policy will be transferred to the named beneficiary
- The policy will be paid to the beneficiary regardless of the terms of the will
Pension benefits Lump sums:
- Calculated on the basis of an employee’s salary at the time of their death
- Is paid by the trustees of the pension fund to family members chosen at the
trustees discretion
-
Trust property If the deceased has an equitable interest as a beneficiary of a trust
- The trust property will devolve according to the terms of the trust not the
will of the life tenant
Wills terminology
Testator / testatrix Person making the will
Revocation clause Revoked prior wills - prior wills will have no effect
Directions as to the Optional
disposal of the body
Appointment of An executor / executrix
executors - The person who deals with the testator’s affairs after their death
- Collects testator’s assets
- Pays debts and inheritance tax
Authority to act
- Executors will apply to HMCTS for a grant of probate to confrim that the will
is valid and that the executor has authority to act
Gifts Specific gift
1
, - A gift of a specific item which the testator owns which is distinguished in
the will from the rest of the testator’s assets
General gift:
- A gift of items corresponding to a description
- If the testator does not own the items at death the executor must obtain the
items using funds obtained from the estate
Demonstrative girft
- A gift general in nature but directed to be paid from a specific fund
Pecuniary gift
- A gift of money
Residuary gift
- Comprises all the money and property left after the testator’s debts have
been paid
Requirements for a 1. Capacity
valid will 2. Intention
3. Formalities under WA 1837
Capacity The test:
- Individual must be 18 or over
- Must have mental capacity (soundness of mind, memory and
understanding - Banks v Goodfellow)
Capacity: -
- The testator must understand
- The nature of their act and its effects
- The extent of their property
- The moral claims they ought to consider
- The testator must not be suffering from any insane delusion which affects
the disposition of property
General rule Testators must have capacity at the time they execute their wills
Exception: Parker v Felgate
- A will can be valid if the testator has capacity when they give instructions
for the will even if they lose capacity by the time the will is executed
MCA 2005 Test for capacity
- If the testator is mentally incapable of making a will a statutory will may be
made on their behalf under MCA
- The Court of Protection will approve a draft will only if it is the testator’s
best interest
Golden rule If the testator lacks capacity the will is void
- The solicitor shoudl ask a medical practitioner to provide a written report
confirming the testator’s capacity (Kenward v Adams)
2
,Presumption of capacity There is a presumption that the testator satisfies the mental capcity test
When does the presumption apply
- If the will is rational on its face and teh testator showed no evidence of
mental confusion before making the will
Burden of proof The general rule:
- The person who is asserting that a will is valid has to prove it
Exception:
- The presumption applies
If the presumption applies:
- The burden is shifted on the challenger to prove a lack of capacity
Intention The testator must have both general and specific intention
General rule The testator must intend to make a will
- Must know and approve of the will’s contents at the time when the will is
executed
Exception:
- Parker v Felgate exception applies
Burden of proof General rule:
- The person asserting that a will is valid has to prove it
Exception:
- Presumption of knowledge and approval
Presumption of A testator who has capacity and has read and executed the will is presumed to
knowledge and have the requisite knowledge and approval
approval
When does the presumption not apply:
- Testator is blind / illiterate / the will is not signed properly
- HMCTS will require evidence to prove knowledge and approval
before granting a probate
- A statement can be included at the end of the will stating that the
will has been read to the testator
- Suspicious circumstances
- The presumption does not apply if there are suspicious
circumstances surrounding the drafting or execution of the will
- The beneficiary preparing the will results in suspicious behaviour
(Wintle v Nye)
Force, fear, fraud, and Where a testator with capacity appears to have known and approved the contents
undue influence of the will - anyone challenging the will must prove one of the following:
- Force or fear (through actual or threatened injury)
- Fraud (misled by someone)
- Undue influence (intolerable pressure)
3
, Mistake Mistake:
- The presumption of knowledge and approval does not apply if all or part of
the will was included by mistake
- Any words included without the testator’s knowledge or approval will be
omitted from probate
Formalities fo s9 WA 1837: the will must be:
execution - In writing
- Signed by the testator
- The testator must have intended to give effect tot he will by his signature
- The signature must be witnessed by atleast 2 witnesses
The will must be in Any kind of signature is acceptable provided the testator intends the signature to
writing and signed represent their name
Another person signing:
- Another person is allowed to sign the will on the testator’s behalf in the
testator’s presence and at their direction
- The testator must give the person a positive direction that they want the
person to sign on their behalf
The testator must have It is not enough for the will simply to have a signature
intended to give effect - It must appear that the testator intended that his signature would cause the
to the will by his will to take effect
signature
The signature must be The 2 witnesses must be present at the same time
witnessed - They must sign the will in the presence of the testator
- Must see the testator signing the document
Acknoweldging the signature
- Means that the person confrims that the signature is theris
If the witness is a beneficiary under the will or the spouse of the beneficiary
- The will remains valid but the gift to the witness or to the spouse fails (s15)
Exception to the A will made on actual military service may be in any form including a mere oral
formalities statement (s11)
The burden of proof General rule:
- The person asserting the will is valid has the burden
Exception:
- Presumption of due execution
The presumption:
- Arises if the will includes an attestation clause
- Means that the formalities were observed
- Shifts the burden of proof on the person challenging the validity of the will
- If the will does not include an attestation clause
4
Validity of Wills - How Property Passes on Death
Joint property Held as JT:
- On death the interest passes by survivorship to the surviving joint tenant
Held as TC:
- The share of the tenant passes on their death under their will
Insurance policies Where a person takes out a life assurance policy
- The benefit of the policy belongs to the deceade’s
- The policy will be paid to the deceased’s PRs who will distribute the money
according to the terms of the will or intestacy rules
Where a life assurance policy is writted in trust for the benefit of someone else
- The policy will be transferred to the named beneficiary
- The policy will be paid to the beneficiary regardless of the terms of the will
Pension benefits Lump sums:
- Calculated on the basis of an employee’s salary at the time of their death
- Is paid by the trustees of the pension fund to family members chosen at the
trustees discretion
-
Trust property If the deceased has an equitable interest as a beneficiary of a trust
- The trust property will devolve according to the terms of the trust not the
will of the life tenant
Wills terminology
Testator / testatrix Person making the will
Revocation clause Revoked prior wills - prior wills will have no effect
Directions as to the Optional
disposal of the body
Appointment of An executor / executrix
executors - The person who deals with the testator’s affairs after their death
- Collects testator’s assets
- Pays debts and inheritance tax
Authority to act
- Executors will apply to HMCTS for a grant of probate to confrim that the will
is valid and that the executor has authority to act
Gifts Specific gift
1
, - A gift of a specific item which the testator owns which is distinguished in
the will from the rest of the testator’s assets
General gift:
- A gift of items corresponding to a description
- If the testator does not own the items at death the executor must obtain the
items using funds obtained from the estate
Demonstrative girft
- A gift general in nature but directed to be paid from a specific fund
Pecuniary gift
- A gift of money
Residuary gift
- Comprises all the money and property left after the testator’s debts have
been paid
Requirements for a 1. Capacity
valid will 2. Intention
3. Formalities under WA 1837
Capacity The test:
- Individual must be 18 or over
- Must have mental capacity (soundness of mind, memory and
understanding - Banks v Goodfellow)
Capacity: -
- The testator must understand
- The nature of their act and its effects
- The extent of their property
- The moral claims they ought to consider
- The testator must not be suffering from any insane delusion which affects
the disposition of property
General rule Testators must have capacity at the time they execute their wills
Exception: Parker v Felgate
- A will can be valid if the testator has capacity when they give instructions
for the will even if they lose capacity by the time the will is executed
MCA 2005 Test for capacity
- If the testator is mentally incapable of making a will a statutory will may be
made on their behalf under MCA
- The Court of Protection will approve a draft will only if it is the testator’s
best interest
Golden rule If the testator lacks capacity the will is void
- The solicitor shoudl ask a medical practitioner to provide a written report
confirming the testator’s capacity (Kenward v Adams)
2
,Presumption of capacity There is a presumption that the testator satisfies the mental capcity test
When does the presumption apply
- If the will is rational on its face and teh testator showed no evidence of
mental confusion before making the will
Burden of proof The general rule:
- The person who is asserting that a will is valid has to prove it
Exception:
- The presumption applies
If the presumption applies:
- The burden is shifted on the challenger to prove a lack of capacity
Intention The testator must have both general and specific intention
General rule The testator must intend to make a will
- Must know and approve of the will’s contents at the time when the will is
executed
Exception:
- Parker v Felgate exception applies
Burden of proof General rule:
- The person asserting that a will is valid has to prove it
Exception:
- Presumption of knowledge and approval
Presumption of A testator who has capacity and has read and executed the will is presumed to
knowledge and have the requisite knowledge and approval
approval
When does the presumption not apply:
- Testator is blind / illiterate / the will is not signed properly
- HMCTS will require evidence to prove knowledge and approval
before granting a probate
- A statement can be included at the end of the will stating that the
will has been read to the testator
- Suspicious circumstances
- The presumption does not apply if there are suspicious
circumstances surrounding the drafting or execution of the will
- The beneficiary preparing the will results in suspicious behaviour
(Wintle v Nye)
Force, fear, fraud, and Where a testator with capacity appears to have known and approved the contents
undue influence of the will - anyone challenging the will must prove one of the following:
- Force or fear (through actual or threatened injury)
- Fraud (misled by someone)
- Undue influence (intolerable pressure)
3
, Mistake Mistake:
- The presumption of knowledge and approval does not apply if all or part of
the will was included by mistake
- Any words included without the testator’s knowledge or approval will be
omitted from probate
Formalities fo s9 WA 1837: the will must be:
execution - In writing
- Signed by the testator
- The testator must have intended to give effect tot he will by his signature
- The signature must be witnessed by atleast 2 witnesses
The will must be in Any kind of signature is acceptable provided the testator intends the signature to
writing and signed represent their name
Another person signing:
- Another person is allowed to sign the will on the testator’s behalf in the
testator’s presence and at their direction
- The testator must give the person a positive direction that they want the
person to sign on their behalf
The testator must have It is not enough for the will simply to have a signature
intended to give effect - It must appear that the testator intended that his signature would cause the
to the will by his will to take effect
signature
The signature must be The 2 witnesses must be present at the same time
witnessed - They must sign the will in the presence of the testator
- Must see the testator signing the document
Acknoweldging the signature
- Means that the person confrims that the signature is theris
If the witness is a beneficiary under the will or the spouse of the beneficiary
- The will remains valid but the gift to the witness or to the spouse fails (s15)
Exception to the A will made on actual military service may be in any form including a mere oral
formalities statement (s11)
The burden of proof General rule:
- The person asserting the will is valid has the burden
Exception:
- Presumption of due execution
The presumption:
- Arises if the will includes an attestation clause
- Means that the formalities were observed
- Shifts the burden of proof on the person challenging the validity of the will
- If the will does not include an attestation clause
4
