Wills & Succession

What does a will determine?

Distribution of a person’s succession estate.

Do the same legal principles apply to codicils?

Yes – all rules for wills also apply to codicils.

What are the 3 requirements for a valid will?

Testamentary capacity, knowledge & approval, and execution.

Case for testamentary capacity?

Banks v Goodfellow – testator must understand nature of act, extent of property, and claims of potential beneficiaries.

Exception to timing requirement for capacity?

Parker v Felgate – capacity needed at time of giving instructions, not necessarily at signing.

What is “knowledge & approval”?

Testator must know and approve contents of will and intend to give it effect.

Presumption of knowledge & approval arises when…?

Will duly executed, testator had capacity, and signed after having opportunity to read.

Statutory provision for execution of a will?

s.9 Wills Act 1837 – signed by testator in presence of 2 witnesses who also sign.

Difference between dispositive and non-dispositive clauses?

• Non-dispositive: executors, trustees, guardians, revocation, date, attestation.

• Dispositive: dispose of assets (specific, general, pecuniary, demonstrative, residuary gifts).

What are vested vs contingent interests?

Vested = immediate entitlement (even if under 18, held on trust).
Contingent = subject to condition (e.g., reaching age 21).

What’s the difference between absolute and discretionary gifts?

Absolute = direct entitlement.
Discretionary = trustees decide how/when beneficiaries benefit.

What is the default tax rule for gifts?

Made free of IHT but subject to costs of transfer, unless stated otherwise.

From what date is subject matter identified?

Date of death (s.24 WA 1837), unless contrary intention shown.

When is “my” a problem word in wills?

It points to property owned at execution; if gone at death → gift adeems.

What happens if a non-residuary gift fails (lapses)?

Falls into residue.

What happens if a residuary gift fails?

Risk of partial intestacy.

Statutory substitution for predeceased issue?

s.33 WA 1837 – issue of deceased child takes parent’s share.