Exam (elaborations)
Challenging a will
- Institution
- University Of Law (ULaw)
Consolidated notes on challenging a will.
[Show more]
Content preview
Challenging a willGrounds in which a will can be challenged:
1. Lack of intention
2. Lack of capacity
3. Lack of formality
These elements must all be present for a will to be valid under the Wills Act 1837.
Grounds to challenge a will – Lack of Capacity
pg.367
Must be aged 18 or over (limited exceptions) and have mental capacity.
Proof and presumptions:
Banks v Goodfellow – common law test for mental capacity
Mental capacity was defined in Banks v Goodfellow as “soundness of mind, memory
and understanding”
The person must understand
o Nature of the event and its broad effects
o Extent of the property
o Moral claims he ought to understand
The person must not suffer from any insane delusion which affects disposition of
property.
The person putting forward a will has to prove all the necessary elements, including
mental capacity – not particularly burdensome as, where no signs of mental
confusion, capacity is presumed.
If there is anything to put capacity in doubt, the presumption will not apply and the
burden of proof is on the PRs to prove capacity on the basis of the Banks v
Goodfellow test.
Mental Capacity Act 2015
Statutory test for capacity for a person to take a decision
S1(2) states ‘for the purpose of this Act a person must be assumed to have the
capacity unless it is established that he lacks capacity”
Uncertainty as to if this test applies to wills
Case law would suggest this does not:
o Walker v Badman 2014 stated the test established in Banks v Goodfellow
applies
o James v James 2018 came to same conclusion as Walker v Badman
The burden of proof would be on the person bringing the claim of lack of capacity
NB: The law commission is reviewing the law on wills and succession and may well make
recommendations as to the correct test.
The benefits of buying summaries with Stuvia:
Guaranteed quality through customer reviews
Stuvia customers have reviewed more than 700,000 summaries. This how you know that you are buying the best documents.
Quick and easy check-out
You can quickly pay through credit card for the summaries. There is no membership needed.
Focus on what matters
Your fellow students write the study notes themselves, which is why the documents are always reliable and up-to-date. This ensures you quickly get to the core!
Frequently asked questions
What do I get when I buy this document?
You get a PDF, available immediately after your purchase. The purchased document is accessible anytime, anywhere and indefinitely through your profile.
Satisfaction guarantee: how does it work?
Our satisfaction guarantee ensures that you always find a study document that suits you well. You fill out a form, and our customer service team takes care of the rest.
Who am I buying these notes from?
Stuvia is a marketplace, so you are not buying this document from us, but from seller msellex. Stuvia facilitates payment to the seller.
Will I be stuck with a subscription?
No, you only buy these notes for £2.99. You're not tied to anything after your purchase.
Can Stuvia be trusted?
4.6 stars on Google & Trustpilot (+1000 reviews)
82871 documents were sold in the last 30 days
Founded in 2010, the go-to place to buy revision notes and other study material for 14 years now