| 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: Nature of the act and its effects Extent of the property of which he is disposing Claims to which he ought to give effect T had capacity when he gave instruction to a solicitor to draw up a will, and A will was drawn up in accordance with those instructions, and T remembers giving instructions and believes the will to have been drawn up in accordance with those instructions |
| 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: | 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 |
| 3 | Testator intended by his signature to give effect to the will Wood v Smith [1992] 3 All ER 556: where T uses a standard will form and completes it in their own handwriting, heading it with “My will by XX” but fails to sign at the bottom of each page, the will is still valid as long as there is sufficient evidence that T intended their signature on the first or last page to authenticate the will |
| 4 | Signature must be made or acknowledged in the joint presence of two or more witnesses Acknowledgement: Gaze v Gaze (1843) 3 Curt 451: where T produces a will, all in their own handwriting and signed at the end, to three people and requests them to put their names underneath, the acknowledgment of the signature is sufficient Who can be a valid witness? |
| 5 | Witness must attest and sign or acknowledge signature in the presence of the testator Casson v Dade (1781) 21 ER 399: an asthmatic testatrix executed her will in her carriage as the attorney's office where the will was drawn up was very hot; the carriage was in such a position of proximity to the window that she could see what was going on in the office – this was sufficient Couser v Couser [1996] 3 All ER 256: a witness to the execution of a will can acknowledge his own signature in the later presence of the second witness Re Colling [1972] 3 All ER 729: where T has only signed part of his name before one of the witnesses is called away, they have not signed in front of both witnesses as their signature is incomplete and he...
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