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9 Cards in this Set
- Front
- Back
- 3rd side (hint)
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What are the elements required for making a valid will? Noting the case. Note in exam you need to mention all 3 limbs if there is doubt over one element |
1. Testamentary capacity Banks v Goodfellow - common law test still good law. At the date of execution - NEC Nature of act / Extent of property / Claims - I.e moral claims state of mind that knows about them
2 Intention (knowledge and approval) Presumption that this present, but it is rebuttable if the testator is blind of suspicious circumstances 3 Wills act must comply with s.9 wills act 1837 execution requirements of wills act - WS In writing Signed - by testator or someone else in his presence I.e if he can’t hold a pen 2 or more witness When testator signs both witnesses need to be present in room at the same time. I.both witnesses But when the witness signs this must be in the presence of t, but the other witness doesn’t have to be there
Parker and feldgate : Date of instruction affects timing of when test capacity is required. Usual rule is that you need capacity at the date of execution under banks and Goodfellow, but Parker and feldgate varies this and says that the date of instruction is sufficient provided. Gap between instruction and execution Prepared in accordance with instructions Testator understood they gave instructions for will being executed |
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If a will is made under duress is it valid? (Knowledge and approval requirement 2) - |
No the will will not be valid - |
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In an exam you might be given a scenario about doubt about as to the capacity of a testator which might give rise to concern- you would be expected to deal with capacity /intention and formality 9 |
Capacity Intention - undue influence can affect this Formality - s9 |
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When would someone lack capacity for a will? |
Pain killers / depressive state / dementia. Various illness can have an affect. Your obligation is to make sure that if you are in doubt seek doubt from medical practitioner. |
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Is there are statutory presumption that people have capacity when drafting a will? |
Yes there is a presumption that the person drafting the will has capacity |
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What does a valid attestation clause raise? Signed by the above named testator in our joint presence and then by us in his. |
Raises presumption that the will was validity executed |
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When will testamentary capacity be presumed? |
A well drafted attestation clause raises the presumption of valid execution. If it complies with the formality requirements of s.9 WA1837 and on the face of it is rational |
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When is knowledge and approval pressured? |
If it is establish that there is testamentary capacity then knowledge and approval is presumed? True or false |
Yes,nothing that the test for testamentary capacity (nec) |
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When is knowledge and approval not pressumed? |
When the testator is blind or cannot read. |
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