Validity of Wills and How Property Passes on Death

Wills Chapter 1

What happens if property is held by more than one person as beneficial joint tenant?

On death of the other tenant - the interests pass automatically to surviving tenant (not under terms of the will)

The doctrine of survivorship does not apply to land held as tenants in common - the share of a tenant in common passes on their death under their will (or under the intestacy rules) - SURVIVORSHIP DOES NOT APPLY TO LAND

Can a life insurance policy or a pension benefit past under will?

NO - policy matures and passes to the named beneficiaries (passes outside the will) - can be transferred/assigned to a named beneficiary.

*same applies to pensions - pass on death independently of the terms of any will and of the intestacy rules.

**However, if the policy is payable to the estate (no individual named) will pass under the will

Does trust property pass under a will? (i.e. when a person has an interest under trust)

NO - in these situations, the trust property will devolve according to the terms of the trust and not the deceased life tenant’s will.

What is the difference between a specific/pecuniary/residuary gift?

SG = specific gift or item owned by the testator

PG = gift of money

RG = ‘the rest’

What are the three requirements for a valid will?

i) capacity

ii) intention

iii) formalities (under the Wills Act 1837)

What is the test for capacity?

Banks v Goodfellow - understand: a) nature of their act and its broad effects b) the extent of their property c) moral claims they ought to consider

What is the general rule for capacity and what is the notable exception?

GR = must have capacity at time of making will

EX = will valid if testator has capacity when they give instructions for the will even if they lose capacity by the time the will is executed - e.g. will valid if give instructions to solicitor and at the time they had capacity.

What happens if a testator is mentally incapable of making a will?

A ‘statutory will’ may be made on their behalf under the MCA (Mental Capacity Act)

What is the ‘golden rule’ in capacity?

If mental state is in doubt - the solicitor should ask a medical practitioner to provide a written report confirming that the testator has testamentary capacity and also ask the doctor to witness the will.

What is the general rule for burden of proof for capacity?

GR = the person who is asserting that a will is valid MUST PROVE IT

What is the presumption of capacity?

The presumption applies if the will is rational on its face and the testator showed no evidence of mental confusion before making the will.

What happens if someone wants to challenge the validity of a will and the presumption applies?

In the event that someone wishes to challenge the validity of the will on the ground that the testator lacked capacity, the burden shifts to the challenger to prove lack of capacity.

*difficult to challenge if prepared by experienced, independent solicitor who met the testator/ a medical practitioner.

What is specific and general intention?

SI = intend to make the particular will being executed

GI = intend to make a will rather than any other document

What is the presumption of knowledge and approval?

A testator who has capacity and has read and executed the will is presumed to have the requisite knowledge and approval.

When does the presumption of knowledge and approval not apply?

i) Testator blind/illiterate/not signing personally - HMCTS will require evidence to prove knowledge and approval before they will issue a grant of probate - usually contain a statement the T knew and approved the contents

ii) Suspicious circumstances - e.g. will has been prepared by someone who is to be a major beneficiary under its terms or who is a close relative of a major beneficiary

Who must prove intention if the will was made under suspicious circumstances?

The executor or person putting forward the will must remove the suspicion by proving that the testator did actually know and approve the will’s contents (the presumption does not apply)

What are the four main ways to challenge a will if a testator appears to have capacity and knew/approved the contents?

i) force or fear

ii) fraud

iii) undue influence - coercion or duress (just persuasion is not enough) - need to prove (can be v. difficult)

iv) mistake - any words included without the knowledge and approval of the testator will be omitted from probate - need to distinguish between actual mistake and misunderstanding.

What are the formalities of execution under s.9 WA 1837?

i) in writing

ii) signed - any kind of signature is acceptable - can get someone else to sign but must give a positive and discernible direction.

iii) two or more witnesses - mentally (know its a document - not necessarily a will) and physically (witnesses don’t have to sign in presence of each other - just the T)

iv) witnesses attest and sign the will and acknowledge their signature

What happens if a witness is a beneficiary under the will?

If either of the witnesses is a beneficiary under the will or is the spouse or civil partner of a beneficiary, the will remains valid but the gift to the witness or to the witness’s spouse/civil partner fails (s.15 WA 1837)

What is a privileged will? (exception to s.9)

A will made on actual military service or by a mariner or seaman at sea may be in any form, including a mere oral statement (s 11 Wills Act 1837)

Only requirement is that the 'T’ intends to dispose of his property after his death.

What is the presumption of due execution?

The presumption arises if the will includes a clause which recites that the s 9 formalities were observed - known as an ATTESTATION CLAUSE

The presumption means that anyone challenging the validity of the will on the ground that it was not validly executed has the burden of proving this was the case.

What happens if a will does not contain an attestation clause?

HMCTS will require an affidavit of due execution (or witness statement verified by a statement of truth) from a witness/someone present or an affidavit of handwriting evidence to identify the testator’s signature

if not, they will refer the case to a judge (time and expense)