Chapter 1: Validity of Wills
Property passing 1. Joint tenancy → passed under doctrine of survivorship
outside the will / 2. Life insurance
intestacy rule 3. Pension scheme
4. Equitable interest under a trust → develove according to the term of wills
These will be passed outside the will, regardless of what the will stipulated
Structure of will 1. Revocation clause
2. Direction as to the disposal of bodied – no legal effect
3. Appointment of executor
4. Gifts
Requirement of a Requirement 1: Capacity
valid will
Requirement of testamentary capacity – Banks v Goodfellow test
1. Testator must understand
a. nature and effect of making the will
b. the extent of property
c. moral claims they ought to consider
2. Testator must not be suffering from insane delusion
General rule = Testator must have capacity when executing the will
Exception = Parker v Felgate
● although mental capacity is required to give instructions, this is not
necessary at the time of execution provided that the earlier instructions had
not been revoked
● Main requirement to apply this exception
1. Testator must have had testamentary capacity at the time he gave
the instructions for the will
2. the will must give effect to those instructions as given
3. those instructions must not have changed
4. at the time of execution, the testator must know that he is giving
effect to earlier instructions by doing so
Golden rule
● Solicitor should follow the golden rule if the testator’s mental state is in
, doubt
● Solicitor should
○ Ask a medical practitioner to provide a written report confirming
that testator has testamentary capacity
○ Ask the doctor to witness the will and record their own view of
testator’s capacity
● Written evidence should be kept on file note for future dispute
Burden of proof
● General rule = it is for the person asserting that a will is valid to prove it
● But executor can normally rely on the presumption of capacity
○ Presumption arises where
■ the will is rational on its face
■ AND testator showed no evidence of mental confusion
before making the will
● If presumption applies, the burden will shift to challenger to prove lack of
capacity
● Courts are less likely to find a lack of capacity if
○ A rational will was prepared by solicitor who met with testator and
explained the will to them
○ written report is produced according to golden rule
Requirement 2: Intention
When the will is signed, testator must have both general and specific intention
1. Must intend to make a will
2. Must intend to execute the will = know and approve the contents of will at
the time the will is executed
Exception under Parker v Felgate applies
Burden of proof
● General rule = it is for the person asserting that a will is valid to prove it
● But executor can normally rely on presumption of knowledge and
approval
○ Presumption arises where
■ testator has capacity
■ AND has read and executed the will
○ Presumption does not apply
■ Blind + illiterate + not signing personally
● Probate Registry requires evidence to prove
knowledge and approval
● Usually will include a statement stating the will is
, read over to testator
■ Suspicious circumstances surrounding the drafting /
execution of will
● i.e. will is prepared by someone who is major
beneficiary
● Executor must remove the suspicion first
● If the presumption applies, burden of proof will shift to the challenger to
prove one of the following in order to challenge the validity of will
○ Force / fear → through actual / threatened injury
○ Fraud
○ Undue influence
■ Persuasion ≠ undue influence
■ Need to prove undue influence by collecting strong
evidence from family / friends / carers
■ This is a serious allegation → if C failed to substantiate its
claim, will be penalised in costs
○ Mistake (whole / part)
■ Any words included without knowledge and approval of
testator will be omitted from probate
■ Misunderstanding to the legal meaning of words will not
be omitted → only actual mistake
Solicitor must not accept instruction from third party to draw up a will
➔ Must interview testator in the absence of the third party
Requirement 3: Formalities of execution
Important provision = section 9 Wills Act 1837
Requirements of the will
1) Must be in writing
a) Can be written on anything
b) But an electronic will held only on company = not in writing
2) Must be signed
a) Can be any kind of signature - crosses / thumbprint
b) Another person can sign on testator’s behalf in the testator’s
presence + at their direction
3) Testator must have intention to give effect to the will by signature
4) Signature must be witnessed
a) Stage 1: Testator’s signature must be made / acknowledged in the
presence of 2 witnesses
i) 2 witnesses must be present at the same time
b) Stage 2: Witnesses must then sign the will in the presence of
, testator
i) But not necessarily in the presence of each other
c) Presence = requires both
i) Mental presence = must be aware that testator is signing
a document → no need to know it’s a will
ii) Physical presence = must see the testator signing →
unobstructed line of sight
d) Acknowledging signature = the person confirms that the signature
is theirs
Requirement of witness
● Must be capable of understanding the significance of being the witness
● If witness is beneficiary / spouse of beneficiary → the will remains valid
○ But the gift to beneficiary will fail
Remote witnessing
● Only apply to wills made on or before 31 January 2024
● applies only where testators sign their wills themselves
● Effect = presence of witness can by means of videoconference / other visual
transmission
● Guidelines
○ Witnessing pre-recorded videos is not permitted
○ witnesses and testator can all be at different locations
○ testator must physically sign the will + Electronic signatures are not
permitted
○ The will must then be taken or posted to the witnesses
○ witnesses must physically sign the will in virtual presence of
testator
○ The will is not valid until both witnesses have signed
Privileged wills
● Does not need to comply section 9 requirements to be valid
● Apples to wills made on actual military service / by a mariner / seaman
● Can be in any form
Burden of proof
● General rule = it is for the person asserting that a will is valid to prove it
● But executor can normally rely on presumption of due execution
○ Presumption arises where attestation clause included
○ ‘Signed by the testatrix in our joint presence and then by us in hers’
● If the will does NOT contain attestation clause, Probate Registry will
require
○ affidavit of due execution from a witness / any other person who
Property passing 1. Joint tenancy → passed under doctrine of survivorship
outside the will / 2. Life insurance
intestacy rule 3. Pension scheme
4. Equitable interest under a trust → develove according to the term of wills
These will be passed outside the will, regardless of what the will stipulated
Structure of will 1. Revocation clause
2. Direction as to the disposal of bodied – no legal effect
3. Appointment of executor
4. Gifts
Requirement of a Requirement 1: Capacity
valid will
Requirement of testamentary capacity – Banks v Goodfellow test
1. Testator must understand
a. nature and effect of making the will
b. the extent of property
c. moral claims they ought to consider
2. Testator must not be suffering from insane delusion
General rule = Testator must have capacity when executing the will
Exception = Parker v Felgate
● although mental capacity is required to give instructions, this is not
necessary at the time of execution provided that the earlier instructions had
not been revoked
● Main requirement to apply this exception
1. Testator must have had testamentary capacity at the time he gave
the instructions for the will
2. the will must give effect to those instructions as given
3. those instructions must not have changed
4. at the time of execution, the testator must know that he is giving
effect to earlier instructions by doing so
Golden rule
● Solicitor should follow the golden rule if the testator’s mental state is in
, doubt
● Solicitor should
○ Ask a medical practitioner to provide a written report confirming
that testator has testamentary capacity
○ Ask the doctor to witness the will and record their own view of
testator’s capacity
● Written evidence should be kept on file note for future dispute
Burden of proof
● General rule = it is for the person asserting that a will is valid to prove it
● But executor can normally rely on the presumption of capacity
○ Presumption arises where
■ the will is rational on its face
■ AND testator showed no evidence of mental confusion
before making the will
● If presumption applies, the burden will shift to challenger to prove lack of
capacity
● Courts are less likely to find a lack of capacity if
○ A rational will was prepared by solicitor who met with testator and
explained the will to them
○ written report is produced according to golden rule
Requirement 2: Intention
When the will is signed, testator must have both general and specific intention
1. Must intend to make a will
2. Must intend to execute the will = know and approve the contents of will at
the time the will is executed
Exception under Parker v Felgate applies
Burden of proof
● General rule = it is for the person asserting that a will is valid to prove it
● But executor can normally rely on presumption of knowledge and
approval
○ Presumption arises where
■ testator has capacity
■ AND has read and executed the will
○ Presumption does not apply
■ Blind + illiterate + not signing personally
● Probate Registry requires evidence to prove
knowledge and approval
● Usually will include a statement stating the will is
, read over to testator
■ Suspicious circumstances surrounding the drafting /
execution of will
● i.e. will is prepared by someone who is major
beneficiary
● Executor must remove the suspicion first
● If the presumption applies, burden of proof will shift to the challenger to
prove one of the following in order to challenge the validity of will
○ Force / fear → through actual / threatened injury
○ Fraud
○ Undue influence
■ Persuasion ≠ undue influence
■ Need to prove undue influence by collecting strong
evidence from family / friends / carers
■ This is a serious allegation → if C failed to substantiate its
claim, will be penalised in costs
○ Mistake (whole / part)
■ Any words included without knowledge and approval of
testator will be omitted from probate
■ Misunderstanding to the legal meaning of words will not
be omitted → only actual mistake
Solicitor must not accept instruction from third party to draw up a will
➔ Must interview testator in the absence of the third party
Requirement 3: Formalities of execution
Important provision = section 9 Wills Act 1837
Requirements of the will
1) Must be in writing
a) Can be written on anything
b) But an electronic will held only on company = not in writing
2) Must be signed
a) Can be any kind of signature - crosses / thumbprint
b) Another person can sign on testator’s behalf in the testator’s
presence + at their direction
3) Testator must have intention to give effect to the will by signature
4) Signature must be witnessed
a) Stage 1: Testator’s signature must be made / acknowledged in the
presence of 2 witnesses
i) 2 witnesses must be present at the same time
b) Stage 2: Witnesses must then sign the will in the presence of
, testator
i) But not necessarily in the presence of each other
c) Presence = requires both
i) Mental presence = must be aware that testator is signing
a document → no need to know it’s a will
ii) Physical presence = must see the testator signing →
unobstructed line of sight
d) Acknowledging signature = the person confirms that the signature
is theirs
Requirement of witness
● Must be capable of understanding the significance of being the witness
● If witness is beneficiary / spouse of beneficiary → the will remains valid
○ But the gift to beneficiary will fail
Remote witnessing
● Only apply to wills made on or before 31 January 2024
● applies only where testators sign their wills themselves
● Effect = presence of witness can by means of videoconference / other visual
transmission
● Guidelines
○ Witnessing pre-recorded videos is not permitted
○ witnesses and testator can all be at different locations
○ testator must physically sign the will + Electronic signatures are not
permitted
○ The will must then be taken or posted to the witnesses
○ witnesses must physically sign the will in virtual presence of
testator
○ The will is not valid until both witnesses have signed
Privileged wills
● Does not need to comply section 9 requirements to be valid
● Apples to wills made on actual military service / by a mariner / seaman
● Can be in any form
Burden of proof
● General rule = it is for the person asserting that a will is valid to prove it
● But executor can normally rely on presumption of due execution
○ Presumption arises where attestation clause included
○ ‘Signed by the testatrix in our joint presence and then by us in hers’
● If the will does NOT contain attestation clause, Probate Registry will
require
○ affidavit of due execution from a witness / any other person who
