SQE1 - Wills and the Administration of Estates (Validity of a wiill)

Why would someone make a will?

If a potential testator decides that they are not happy with the way their property will pass on intestacy.

Allows the testator to choose who will manage and distribute their estate, by appointing executors of the will

What is a testator?

The person who makes the will.

Testarix - a woman who makes a will.

What are examples of personal/private reasons someone would want to make a will?

- appointing guardians for the testator's children if the testator dies while they are still minors. for example.

- dealing with funeral arrangements and whether they wish to be buried or cremated - that can only be dealt with in a will and not in intestacy

Who are the executors of the will if the testator does not appoint anyone?

The people who manage and distribute the estate (the personal representatives)

Will be the persons specified in the Non-Contentious Probate Rules 1987 (SI 1987/2024)

What is an estate?

The property that passes to the heirs under the will. It is sometimes called the 'death estate'. However, not all of the property owned by the testator may pass under the will.

Why would a rich testator who owns a lot of land and money want a will?

1. To make sure that it is distributed exactly as the testator wishes; second.

2. To make sure it is done in a way that is tax efficient, ie by not paying any tax (particularly inheritance tax) which could legitimately be saved.

What property is passed independently from the terms of a will or intestacy rules?

1. Jointed property

2. Insurance policies

3. Pension benefits

4. Trust property

How does property owned as beneficial joint tenants pass under a will?

It passes via survivorship to the remaining joint tenant.

This does NOT apply to tenancy in common.

How does property owned as tenants in common pass under a will?

Because 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).

Is property which is passed under survivorship (joint tenants) subject to inheritance tax?

CONFIRM THIS IS CORRECT

For the purposes of inheritance tax, you will be deemed as owning half of the property, and that share will be passed on

George makes a will leaving all his estate to a charity. He and his brother Harry have a joint bank account and own a house as beneficial joint tenants in equity.

How will George's estate be distributed upon his death?

On George's death, his interests in the house and the bank account pass automatically to Harry, not to the charity under the terms of George's will - due to survivorship passing to the remaining joint tenants.

How does a life insurance payment pass upon death of a policy holder?

General rule & exception

General rule - Simple life insurance policy's gets paid to personal representative (person who administers the will) and they will distribute the money according to will/intestacy rules.

Exception - if the insurance policy is written in trust or given away/transferred, the benefit of the policy no longer belongs to the policy holder. Therefore, upon the policy holder's death, the insurance company will pay the proceeds to the named beneficiaries/trustees, regardless of the terms of the will/intestacy rules.

How do pension benefits pass upon death?

Normally, at the time of death a lump sum calculated on the basis of an employees salary is paid by trustee of pension fund to family members / dependents at the trustee's discretion. (Usually the employee will have a non-binding letter of wishes that the pension will normally comply with)

HOWEVER, this does not apply where the pension scheme provides that the sum will go to the personal representative. The PR must then distribute the money according to the terms of the employee's will or the intestacy rules.

How does trust property pass under a will?

If the deceased has an equitable interest as a beneficiary of a trust, the equitable interests come to an end on the beneficiary's death, eg life interests.

In these cases, the trust property will devolve according to the terms of the trust rather than the will.

Susan created a trust of company shares for her husband for life, remainder to her children. The husband dies leaving his estate to charity.

Who will the company shares pass to?

On the husband's death, the company shares held in the trust will pass to Susan's children under the terms of the trust.

They will not devolve under her husband's will to the charity.

Why are the rules of validity of wills necessary?

After the testator has died, there is obviously no way to check with them what they 'actually' or 'really' meant by what is in the will, or indeed to check that the testator really made the will, ie whether it is genuine. The rules on validity of wills are there to make sure that the will is genuine and that only the testator's clearly expressed and attested wishes are implemented.

What happens if one or more of the rules of validity are not satisfied?

If the contents of a will do not comply with the relevant rules, it is highly likely that part or all of it will be ineffective.

If a will fails any of the rules on validity, it will not be admitted to probate. The probate registry will reject it, and the estate will either pass to the personal representatives under an earlier valid will, if there is one, or if not, under the intestacy rules.

What is admitted to probate?

For a will to take effect, probate of the will must be granted by the relevant probate registry.

Admitted to probate means that the will has been approved by the probate registry and a grant of probate issued. Until that has happened, the executors cannot carry out the instructions of the will

What are the three main sets of rules that a will must comply with to be valid?

1. the rules of formalities - set out in s9 of Wills Act 1837

2. the rules of the testator's capacity

3. the rules of intention

Summarise what must must be present for a valid will?

It must comply with all the rules on formalities, and it must be clear that the testator had the mental capacity to make the will, and it must be clear that the testator knew what was in the will and intended to make those arrangements (not just, for example, to jot down some ideas about how they might want to leave their property).

These rules act like a tripod, all three elements must be present. Like a tripod, if one element (tripod leg) is not present, the tripod/will will collapse.

What is meant by executed?

To 'execute' the will is to comply with all of the formalities under the law, but particularly the formalities under s 9 of the Wills Act 1837. It includes the testator signing the will but, as we will see, it includes a lot more than that

What is a privilege will?

Who are the group of people who have privilege wills?

Privileged wills, are wills made by members of the armed forces on active service, or sailors at sea. Privilege wills are not subject to the general rules governing wills.

In battle conditions, it would be extremely difficult for armed personnel to comply with these requirements, so they are made an exception to the main rule.

What are the requirements of a privilege will?

Will may be made in any form (including merely orally).

The only requirement is that the

'testator' intends to dispose of his property after his death.

What is attestation?

To 'attest' to something is to bear witness to it as a fact.

When attesting a will, the witness is confirming that they saw the testator sign or heard the testator acknowledge their signature.

What are the formality requirements of a will?

1. Will must be in writing

2. The will must be signed by the testator

2a. A will can be signed 'by some other person in his presence and at his direction'

4. The testator must have intended to give effect to his will by signature

5. The signature must be witnessed

6. Each witness attests/signs the will

What is the will must be in writing formality requirement?

Tere are no restrictions on the materials or type of wording, so any kind of wiriting will do. Including, handwriting, typewriting, printing off on a printer linked to a PC, braille or shorthand

The will does not have to be written on paper. For

example, a will written on an eggshell has been admitted to probate.

Would an electronic will held only on a computer satisfy the 'in writing' formality requirement?

An electronic will held only on a computer probably would not be considered 'writing'. The purpose of s 9 is to prevent fraud and it would be too easy for a third party to change an electronic will fraudulently.

Would a will handwritten in pencil satisfy the 'in writing' formality requirement

Handwritten wills in pencil, as opposed to ink, are only valid if there is further evidence that the testator intended the pencil writing to be final.

What is the will must be signed formality requirement?

The testator must sign the will.

If the testator has signed with their usual signature, that will meet this requirement, but testators can also make a mark (such as an 'X' or a monogram) or a thumbprint, or even a rubber stamp.

An incomplete signature will also suffice, as will initials. The key point is that the testator intended this to be read as their signature, and that is confirmed by the other elements of s 9.

What signature was considered valid in Estate of Cook [1960]?

In this case, the a will signed 'Your loving mother' was held to be valid because the signature was sufficient to identify the testator and she intended the words to represent

her name.

What is the will can be signed 'by some other person in his presence and at his direction' formality requirement?

What are the two elements to allow for this?

Section 9 allows another person to sign the will on the testator's behalf in the testator's presence and at their direction. This is useful if the testator is too weak to sign the will or if they have injured their hand.

1. The testator must be asking the other person to sign the will - 'please sign this will on my behalf'; these words or their equivalent must be said. - directions can also be non-verbal

2. The other person must sign the will with the testator present when they do so

What is the 'testator by his signature intended to give effect to the will formality requirement?

It is not enough for the will simply to bear a signature. It must appear that the testator intended that his signature would cause the will to take effect.

The classic way of doing this is to sign at the end of the will, though if the signature is elsewhere, it may still pass s 9(b) if the signature and all of the provisions were written at the same time.

A testator does not sign the actual will but places it in an envelope on which he writes

'The last will and testament of Kenneth Brown'.

Would this suffice the 'will must be signed' formality requirement?

It is doubtful whether the name on the envelope would be regarded as a signature which the testator intended would give effect to his will.

What is the signature must be witnessed formality requirement?

Both witnesses must be present to see the testator sign or acknowledge their signature. The two witnesses must be present at the same time. The reason for this stringent requirement is to provide protection against fraud or

coercion.

Note - s9(2) was altered during the Covid pandemic.

What does it mean for the witnesses to be present of the testator's signature?

'Presence' requires mental and physical presence. To be mentally present, the witnesses must be aware that the testator is signing a document. They do not have to know that it is a will. To be physically present, they must see or be able to see the testator signing; there has to be an

unobstructed line of sight between the witness and the testator.

Do the witnesses have to sign in each other's presences?

No, witnesses do not need to sign in each other's presence. They MUST sign in the testator's presence however.

Best practice for witness signatures

Best presence is that the testator and the two witnesses sign in the presence of each other.

How was the signature must be witnessed formality requirement adjusted during the pandemic?

s 9(2) states that 'For the purposes of paragraphs (c) and (d) of subsection (1), in relation to wills made on or after 31 January 2020 and on or before 31 January 2024, "presence" includes presence by means of videoconference or other visual transmission'.

This provision was inserted by virtue of the Wills Act 1837 (Electronic Communications) (Amendment) Order 2022/18 art.2(2) (1 February 2022) to deal with the challenges associated with requiring physical attendance during the Covid-19 pandemic.)

It applies only where testators sign their wills themselves. Where a will is signed on behalf of a testator, it must be in the actual presence of the testator. Remote presence is not enough.

How many witnesses must be present?

Two Or more witnesses present at the time

What is the procedure for remote witnessing?

Government guidance makes the

following points:

1. Witnessing pre-recorded videos is not permitted - the witnesses must see the will being

signed in real-time.

2. The witnesses and testator can all be at different locations, on a three-way link, or two

can be physically together with one at a remote location

3. The testator must physically sign the will (or acknowledge an earlier physical signature).

Electronic signatures are not permitted. The testator will date the will with the date of

signature.

4. The will must then be taken or posted to the witnesses.

5. The witnesses must physically sign the will in the virtual presence of the testator, and, if possible, in the virtual or physical presence of each other.

6. The witnesses will sign with the date on which they are signing, which may be different

from the date on which the testator signed and the date on which the other witness signs.

The execution process is not complete until everyone has signed.

The will is not valid until both witnesses have signed. If the testator dies before all

signatures have been added, the will cannot take effect.

What is the witness acknowledges the signature formality requirement?

REWRITE THIS FLASHCARD

This is an alternative to

By signing, the witness is confirming that they witnessed the testator's signature. The will does not have to contain the statement, 'I saw T sign the will' ('no form of attestation shall be necessary'), but it is standard practice to have an 'attestation clause' to confirm this: see below.

Perry has asked his brother Franchot and his friend Sylvestra to witness his will. They have a cup of tea and a chat in Perry's sitting room before they attend to the will. Perry has a fountain pen ready, but when he tries to sign the will with it, it does not work. He asks Sylvestra to fetch another fountain pen from his study upstairs, and she leaves the room to do so. While she is away, the original fountain pen begins working and Perry signs the will. Sylvestra comes back into the room as Franchot is signing as a witness, and she then signs straight after him without any further discussion.

No. The will has not complied with the rule at s 9(c). It was not signed before two witnesses present at the same time. Only Franchot saw Perry sign the will; Sylvestra did not. Any attestation that she made would be untrue. It does not matter that Perry really did sign the will, and that Franchot saw him. The requirement is that both witnesses must see the testator sign at the same time. This would not be admitted to probate!

What is an attestation clause?

This is a clause in a will that sets out the requirements of s 9(d) of the Wills Act 1837. An example would be: 'Signed by [the testator] in our joint presence and attested by us in his presence [witness' signatures]'.

Are attestation clauses required for a valid will?

No, there is no legal or formal requirement to put plain words in the will that the witnessing formalities have been complied with, but in practice all well-drafted wills contain an attestation clause which states that the witnessing of the will complies with the statutory requirements.

- It is best practice

Why is it good/best practice to include an attestation clause?

An attestation clause in a will is important because, if the clause is there, there is a legal presumption that the will has been executed in accordance with s 9. This is called a 'presumption of due execution'.

If the attestation clause is not there, the will may still be valid, but evidence would have to be produced to show that the s 9 requirements had been complied with.

Frieda's will was witnessed by Greig and Hannah but contained no attestation clause, only their signatures below Frieda's signature. It left all of her property to a local charity. Frieda's nephew, Rolo, has now challenged the will on the basis that it was not properly witnessed in accordance with the provisions of s 9. He relies on the fact that there is no presumption that the will has been duly executed.

What, if anything, can Frieda's executors do to meet Rolo's challenge?

Frieda's executors can gather evidence that proves that Greig and Hannah saw Frieda sign the will in their presence and the presence of each other. The usual way to do this would be to obtain a statement from both Greig and Hannah setting out the circumstances in which they witnessed the will. If these circumstances comply with s 9, and the evidence is accepted and reliable, the will has been duly executed and will be admitted to probate.

What happens when there is a presumption of due exception?

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 are the special rules of attestation when the testator is either blind or illiterate?

There are special rules about attestation if the testator was blind, illiterate or could not read over the will themselves for some other reason.

A special attestation clause should be added where this danger is present. The clause will set out that the will was read over (aloud) to the testator in the presence of the witnesses, and that the testator confirmed that they understood its contents; then that the testator signed the will (or had someone sign at their direction) and the witnesses then attested the will in the usual way.

If this clause is included, this will give rise to a presumption of due execution.

Why are there special rules of attestation when the testator is blind or illiterate?

There is an obvious danger in these circumstances that the testator may sign the will not knowing its contents. This would mean that the testator may not have had knowledge and approval of the will.

What are the rules of the testamentary capacity?

Testamentary capacity is the mental ability to make a will. A testator must be at least 18 years old (s 7 Wills Act) (with certain limited exceptions) to have capacity. Testators must also have mental capacity.

When testamentary capacity is not there, the will is not valid.

Is there a legal presumption that testator's have testamentary capacity?

Yes, there is a legal presumption that a testator has testamentary capacity, however as this is a presumption, it can be displaced by any evidence that this was not the case.

If that happens, there is a legal test for whether or not the testator had testamentary capacity.

What is the common law/Bank v Goodfellow test that a testator has testamentary capacity?

Testamentary capacity was defined as 'soundness of mind, memory and understanding'.

Testators must understand:

1. the nature of the will and its effects

2. the extent of the property

3. the moral claims to which they out to consider

All elements of this test must be satisfied for a testator to have capacity.

When should a testator have testematary capacity?

The strict answer to this question is that testamentary capacity must always be present when the will is executed.

However, as a matter of logic, capacity must also be present when the testator gives instructions for drafting their will.

Problems can arise if the testator did have capacity when they gave instructions, but had lost it by the time of execution. This can happen where the testator has either a deteriorating or a variable condition: Parkinson's disease and dementia are typical examples.

What happens in cases where a testator had capacity when they gave instructions but have lost said capacity by the time of execution?

The exception to the strict rule that capacity must be present at the time of execution is known as the rule in Parker v Felgate [1883] 8 PD 171. That rule states that if there was capacity when instructions were given; if the will was prepared in accordance with those instructions; and if, now, the testator understands that they are signing a will prepared in accordance with those instructions (even if they cannot remember what those instructions were), then there is sufficient capacity on execution for the will to be valid.

Does the Parker v Felgate rule apply to wills not instructed to a solicitor?

No, the will must be instructed to a solicitor.

Goodfellow test

Test 1: Nature of the will & effects question

The testator must understand that they are making a will that will have effect upon their death.

The testator would not understand the nature of the will if, for example, they thought that they were simply jotting down notes about what they might eventually put in a will.

They would not understand the effects of the will if, for example, they believed that it made provision for a favourite grandchild who in fact received nothing.

Goodfellow test

Test 2: The extent of the property question

The testator does not need to know exactly how much is in their estate down to the last penny or even pound, but they do need to understand, for example, that there are different types of property in their estate (eg land and shares), and approximately how much their estate is worth, particularly if it is of high value.

Goodfellow test

Test 3: the moral claims to which they out to consider

What it means in basic terms is 'did the testator consider everyone that they ought to have considered?': children, brothers and sisters, parents and so on. It does not mean that they should have given any property to any particular person. However, if when making the will they forget that they have a son or daughter (as can happen when a testator has dementia, for example), that would be an example of not understanding the claims to which they ought to give effect.

Can someone who suffers from delusions be seen to have testamentary capacity under the Goodfellows test?

Yes, the Banks v Goodfellow test allows for testators who suffer from delusions to have testamentary capacity. The key element is not whether the testator suffers from delusions but whether those delusions affect any of the three tests set out in Goodfellow,

Do the courts consider mental capacity defined in the Mental Capacity Act 2005 when determining testamentary capacity.

NO!

The only test the courts use is the Goodfellow's test.

Can a testator still make a will if they are deemed not to have testamentary capacity?

if a testator is mentally incapable of making a valid will, a

'statutory will' may be made on their behalf under the Mental Capacity Act.

The Court of Protection empowers an authorised person to execute the will and then gives effect to the will by affixing the court seal. The Court of Protection will require full details of the deceased, their family, property and

previous wills and will approve a draft will only if it is in the testator's best interests.

Jorge suffers from visual and auditory hallucinations. He has an imaginary friend called Fernando, a giant pink and purple rabbit who he can see and who talks to him, although Fernando never discusses anything but football. However, Jorge also knows exactly what property he owns, and who his close relatives are. He has come to you wanting to make a will in which he leaves all his property to his sister, with whom he lives, but nothing to his brother. He is not intending to leave anything to Fernando.

Does Jorge have testamentary capacity?

There is nothing in Jorge's delusions that affects his understanding that he is making a will, or the property of which he is disposing, or the claims of his relatives. Jorge has the mental capacity to make a valid will.

What are the rules about intention ('knowledge and approval)?

This requires a testator to have both general and specific intention.

General intention - The testator intended to make a will (as opposed to a gift in their lifetime/or any other sort of document)

Specific intention - The testator must have intended to make the will that they signed (ie the testator must know and approve its contents)

What is best practice when a solicitor is drafting a will for someone they suspect lacks testamentary capacity?

A solicitor preparing a will for a testator whose

mental state is in doubt (possibly due to age or ill health) should follow the 'golden rule' suggested in Kenward v Adams (1975).

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. The solicitor should record their own view

of the testator's capacity in a file note. The written evidence should be kept on the file in case

someone challenges the validity of the will after the testator's death.

What happens if a solicitor fails to follow the golden rule when they suspect a testator may lack testamentary capacity?

The solicitor could be struck off

[ADD THE FACTS OF THE CASE - discussed in the workshop]

What is the presumption of capacity?

Executors do not have to prove capacity because there is a presumption that the testator satisfied the mental capacity test.

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

What can be done to make it very difficult for someone to challenge testamentary capacity?

The courts are less likely to find that the testator lacked capacity if:

1. a rational will was prepared by an experienced, independent solicitor who met the testator and explained the will to them.

Or 2. A report or witnessing by a medical practitioner in accordance with the 'golden rule' will make it very difficult to challenge the will on the ground that the testator

lacked capacity.

Mary died recently. Her will gave her substantial estate to charity and appointed her solicitor, Simon, to be her executor. Mary's estranged son, Wesley, claims that the will is invalid because she lacked mental capacity.

Is Wesley likely to succeed?

Wesley is alleging that Mary lacked capacity presumably on the ground that she did not understand the moral claims to which she would be expected to give effect, contrary to

the third limb of Banks v Goodfellow. His claim is tenuous. The will is valid if Mary was aware of Wesley's claim but decided not to give him anything in her will.

If the will is rational and there was no evidence of mental confusion before the testatrix executed the will, there is a presumption that the testatrix had capacity. The will

appears to be rational because Mary and her son were estranged and therefore, it is understandable that Mary might not want to leave him her estate.

The burden of proof would be on Wesley to produce evidence that Mary lacked capacity when she executed

her will. This would be a difficult burden to discharge, especially if the will was drawn up by the solicitor who met the testatrix and explained the will to her.

What is needed for a testator to have specific intention?

The testator must:

1.know all of the contents of the will and then;

2. think that they are a good idea; in other words, they must approve them.

When must the testator have intention?

Intention must be present at the time the will is executed.

However, if the testator had the intention at the time of giving instructions but lost it prior to execution. the will can be saved with the exception established in Parker v Felgate.

What is the presumption of knowledge and approval?

A testator with testamentary capacity and has read and executed the will is presumed to have the requisite knowledge and approval. It is only a presumption: if there is evidence that outweighs it, then the presumption will fall.

Likewise there are several situations where this presumption will not apply?

What happens if a testator has intention for some parts of the will but not the rest?

It is possible for a testator to have knowledge and approval only of parts of the will and not of others, and if this is the case, only the parts known and approved will be admitted to probate.

What scenarios will prevent a presumption of knowledge and approval?

1. The testator was blind or illiterate.

2. Another person signed the will on the testator's behalf (eg because the testator had an injured hand)

3. The circumstances in which the will was made are suspicious, for example where the will benefits the person who drafted it for the testator.

In these cases, the probate registry/HMCTS will require positive evidence that the testator intended to make the specific will under question

Wintle v Nye [1959]

Suspicious circumstances preventing presumption of knowledge and approval

Nye, a solicitor, prepared a will for an elderly testatrix which gave him the bulk of her large estate. She was of 'limited intelligence', unversed in business and relied for advice

on Nye who had been the family's solicitor for years. The will was complicated, she did not get independent advice, the solicitor retained the original will and did not give her

a copy.

After she died, her cousin, Colonel Wintle, challenged the validity of the will. The House of Lords held that the suspicious circumstances of the beneficiary preparing the will meant that there was no presumption of knowledge and approval. The burden of proof was on the solicitor, Nye, to prove that the testatrix knew and approved the contents of the will. In the circumstances of the case this was a very heavy burden to discharge. At this point, Nye threw in the towel and declared that he no longer wanted to defend the validity of the will.

Gill v Woodall [2010]

Suspicious circumstances preventing presumption of knowledge and approval

The Court of Appeal found that the presumption did not apply where the beneficiary played no part in the preparation of the will. Mrs Gill, a Yorkshire farmer, who was on excellent terms with her daughter and grandson, left everything to the RSPCA after leading her daughter to believe that she would inherit everything. Mrs Gill had gone with her husband to see a solicitor in order that they would both make wills. She suffered from a severe anxiety disorder and agoraphobia, the result of which was that she would have experienced panic when at the office of the solicitor. There was no evidence that she had read the will or had it explained to her, which meant that the Court of Appeal held that the circumstances of the case were so unusual that the presumption did not apply. The burden of proof lay with the RSPCA to establish that Mrs Gill had known and approved the contents of her will but they failed to discharge this burden. The will was declared void and Mrs Gill's daughter inherited under the intestacy rules.

REWRITE

What is best practice when a solicitor receives instructions from a third party to draw up a will for a testator?

A solicitor should not accept instructions from a third party to draw up a will for a testator. They should interview the testator in the absence of the third party to ensure that any will drafted reflects the testator's wishes.

What is the most common factors that brings intention into doubt where a testator is shown to have capacity and known/approved?

Any person who wishes to challenge the will (or any part of it) must prove one or more of the following to prevent some or all of the will from being admitted to probate:

1. Force or fear - through actual or threatened injury

2. Fraud - e.g. after being misled by some pretence),

3. Undue Influence - where the testator's freedom of choice was overcome by intolerable pressure, but their judgement remained unconvinced

If any of these factors are present than the will made as a result, is not valid.

If a factor brings intention to doubt (force/fear, fraud or undue influence), who must prove this?

The person who asserting them must prove on the balance of probabilities.

This can be very problematic if the s 9 formalities have all been complied with, and there is no doubt that the testator had testamentary capacity. The validity of the will cannot be challenged on those grounds. The only possible challenge can be on the basis of 'knowledge and approval'.

it is necessary to prove undue influence in relation to a will. This makes

it very difficult for a person to challenge a will on this basis. They will need to collect

evidence from family, friends and carers. It is such a serious allegation that a claimant

who fails to substantiate their claim will be penalised in costs.

What is undue influence in the context of wills?

Undue influence in the context of wills means coercion or duress. Persuasion stopping short of coercion is not undue influence.

What is best practice solicitors should follow to prevent drawing wills subject to force, fear, fraud or undue influence?

A solicitor taking instructions for a will usually asks to see the testator on their own without any other persons present, to be sure that the instructions really do come from the testator and from their own free will. Sometimes this is not possible for practical reasons - for example, if the testator's spoken English is poor and an interpreter is needed - but it is one reason why solicitors, when taking instructions for wills, should as a matter of professional conduct always take a very careful note of those instructions, including any questions and answers about whether the testator understands the instructions that they are giving and what they will mean after their death.

Arthur died recently at the age of 90. His will, made last year, left his substantial estate to Yvonne, a care worker, who visited him every week in the last two years of his life. Yvonne wrote out the will at Arthur's request. Arthur signed it in accordance with s 9 Wills Act 1837.

Bella, Arthur's niece and closest relative, claims that the will is invalid due to lack of knowledge and approval.

Is the claim likely to succeed?

There is a presumption of knowledge and approval if the testator had capacity and executed the will. However, the presumption does not apply here because there are

suspicious circumstances; the beneficiary, Yvonne, wrote out the will for the testator.

The burden of proof that Arthur knew and approved the contents of the will lies with Yvonne.

If Yvonne manages to produce evidence of Arthur's intention, then Bella will need to contend that Yvonne exerted undue influence. Undue influence is coercion as opposed to persuasion. The court would demand strong evidence of undue influence due to the seriousness of the allegation. If the claim is made on insufficient evidence, Bella will be penalised in costs.

Will the presumption of knowledge and approval apply if part of/all of the will includes a mistake?

The presumption of knowledge/approval does not apply.

Any words included without the knowledge and approval of the testator will be omitted from probate. In this respect, it is important to distinguish between actual mistake (ie absence of knowledge and approval) and misunderstanding as to the

true legal meaning of words used in the will. In the latter case mistaken words will not be omitted.

What are solicitors duties when preparing wills?

The solicitor must give clear instructions to their clients explaining how to sign and witness the will, and warning that beneficiaries and those married to the beneficiaries should not be witnesses.

It is preferable for the clients to execute at the solicitors' office where execution can be supervised.

If the testator executes the will at home, the solicitor should ask them to return the will so that the solicitor can check that s 9 appears to have been complied with and that the witnesses are not beneficiaries or their spouses or civil partners.

What happens if a solicitor fails to carry out their duties?

Failure to carry out these duties may lead to liability in negligence. It has been held that solicitors preparing wills owe a duty of care to the prospective beneficiaries.

Humbleston v Martin Tolhurst Partnership [2004]

Failure of solicitor duties

The will (giving the estate to the testator's cohabitee) was not executed at the solicitor's office. The witnesses signed the will but the testator did not. The will was brought back to the solicitor's office by the cohabitee. The secretary who received the will told the cohabitee that it was 'in order'. Of course, the will was invalid and the cohabitee received nothing. It was held that the firm had been negligent and had to pay damages to the cohabitee equivalent to the amount she should have received under the will.

Ross v Caunters [1980] - CONFIRM THIS IS THE CORRECT CASE

Failure of solicitor duties

The solicitor sent the will to the testator to execute it at home but failed to tell the testator that his signature should not be witnessed by a beneficiary or beneficiary's spouse. A beneficiary who lost their gift due to their spouse witnessing the will brought a successful claim against the solicitor.

What approach should be followed when deciding what happens to a person's property when they die?

1.Do any assets pass independently of the will or intestacy rules?

2. Is there a valid will which disposes of the remaining property?

3. If there is no valid will or it does not dispose of all the deceased's property, apply the intestacy rules.