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THE VALIDITY AND CONTENTS OF A WILL If there were any suspicious circumstances surrounding the will
– eg. the beneficiary procuring the will.
INTRODUCTION: Duress:
When someone dies, their property is passed down by their will, or, if If the will is made under duress (force, fear, fraud or undue influence), it
they have not made a valid will or any will, by the rules of intestacy. will not be admitted to probate. – eg. if the testator has been injured or
is under threat of injury.
When a person dies intestate, they have failed to express their wishes
in a will and thus, their estate will pass according to the statutory rules. A will made under duress, may still be admitted to probate if the court
issues a grant in solemn form and decides that is should be valid.
The deceased’s estate will need to be distributed by their personal
representatives (PRs), who will be responsible for applying for a grant of The executor/any interest person may receive a grant in solemn form by
representation, paying the debts and liabilities of the deceased, paying propounding (authenticate the will in a legal action) the will in a claim
inheritance tax and distributing the estate by transferring property to where the court is asked to determine its validity.
the beneficiaries.
Undue influence:
VALIDITY OF WILLS AND CODICILS: Undue influence = anything that has the effect of overpowering the
Validity of a will: volition of the testator. – persuasion is allowed, but not coercion.
Criteria for a valid will – for the will to be valid: *If not met, invalid* Test for undue influence: The testator must have been pressured or
Testator must have legal capacity, i.e., must be at least 18. coerced into making the will/a particular legacy in the will. – court is
more likely to find undue influence in relation to physically/mentally ill
Testator must have mental capacity testators.
Testator must have intended to make a will
AND Formalities:
The will must satisfy the s.9 Wills Act criteria.
A will must comply with s.9 Wills Act, otherwise the will is invalid.
Mental capacity:
Solicitors will likely be found negligent if execution is incorrect.
The testator will be presumed to have mental capacity unless their
capacity is challenged in a claim. Will must be:
1. In writing
Where the will is rational, capacity is presumed. However, if doubt is 2. Signed by testator, or by another in testator’s presence and by
raised as to capacity, then onus is on the PRs to prove capacity. their direction – eg. where testator is physically unable to sign.
3. Testator intended to give effect to the will.
Where a person lacks capacity, Court of Protection may make a 4. Testator’s signature must be made or acknowledged by testator
statutory will on their behalf. in the presence of min. 2 witnesses, and
5. Each witness attests and signs using full name and address (or
At the material time, the testator must understand that: acknowledges signature) in the presence of the testator.
They are making a will
The extent of their property Witnesses must be: over 18, capable of attesting the testator’s
AND signature, physically and mentally present (eg not drunk) and able to see
The moral claims that they should give effect to (but need not testator sign or acknowledge his signature.
benefit any particular person)
Signed by beneficiaries or their spouses:
Inheritance (Provision for Family and Dependants) Act 1975 s.15 Wills Act If beneficiary or their spouse signs or acts as a witness,
Moral claims: if testator excludes anyone from their will, that beneficiary will not be able to inherit under the will.
person could make a claim against the estate of the deceased
following death on the ground that no reasonable financial Signature/witnessing by beneficiaries or their spouses is still valid:
provision was made. – eg. if a child is excluded. If there are min. two witnesses who are not beneficiaries or their
spouses or
Where a person lacks capacity at certain times because of a mental If will is subsequently confirmed by a codicil.
illness, but has capacity at other times:
• A doctor must be present at the execution as a witness Signature requirements:
AND Signature may be placed anywhere on the will.
• Provide a note stating that the testator, at the time of execution
was able to understand the nature and effect of the will. Acceptable form of signature:
Initials
Material time: Stamped signatures
Material time = when the will is executed (signed). – That is when Marks – eg. a cross.
capacity must exist. Unfinished signatures
Exceptions – no need for capacity at the time of execution if: Signatures in pencil
The testator had capacity when giving instructions for the will Reference to themselves such as “Your loving mother”.
The will is prepared in accordance with those instructions Mutual wills:
AND A will may be made by two or more persons. There will be a copy of this
At the time of executing the will, the testator understood that document for each person, and each will separately sign the document.
they were executing a will as per their instructions.
The parties will also sign a separate contract to state that the wills are
Intention: irrevocable and cannot be altered. – This contract creates a constructive
trust between the parties.
A testator must have:
General intention to make a will If one of the testators dies and the other testator make a change to the
AND will, the beneficiary may apply to the court to enforce the trust.
Specific intention to make the particular kind of will they are
signing with approval of the contents of the will. OPTIONAL: Attestation clause:
There is a presumption that intention exists which can be rebutted A clause stating that will complies with s. 9 WA formalities.
where circumstances suggest a lack of intention. – eg. where the testator
is blind or cannot read. An attestation clause raises a presumption that will was properly
executed. Without it, will is still valid if s.9 WA was followed but proof of
Factors to consider when intention is disputed: valid execution is needed before will is admitted to probate, e.g.
The length of the will – if shorter, more likely that the testator affidavits of due execution sworn by witnesses.
understood and read the contents.
How easy to understand the will is If the will is executed in special circumstances, the attestation clause
If the testator was literate should explain this in detail. – eg. special circumstances would be where
If the testator asked 2 witnesses to sign the document – if that is the testator was unable physically to sign.
that case, it shows that the testator knew they were making a
valid will.
Wills and Administration of Estates – SQE notes | Page 1 of 14
, OPTIONAL: Date: If the original wording is apparent then the will with the original
wording is admitted to probate.
Will is not invalid without a date but it enables Probate Registry to Apparent = original wording can be deciphered by natural means,
ascertain the last will of the testator. reading or holding it up to the light but not infrared photography.
Incorporation of documents into a will: REVOCATION OF A WILL:
Terms of an unexecuted document can be incorporated into a will. A will is revocable during the testator’s lifetime.
Then that doc becomes part of the will even though such document does
not comply with s.9 WA. Types of revocation:
1. Automatic revocation:
Marriage/civil partnership
Valid incorporation if the document: Divorce/dissolution/nullity
i) is clearly identified in the will
ii) exists at the date of the will 2. Deliberate act of the testator:
AND Execution of a new will/codicil
iii) is referred to in the will as in existence at execution.
Destruction
Codicils:
3. Dependant relative revocation
Codicil = testamentary instrument supplementing an existing will. A
codicil republishes the will. This means the will is treated as if it had been Automatic revocation:
executed on the date on which the later codicil was executed. – eg. a
validly executed will, dated 3 Sep 2015 and a codicil to it was signed on Marriage/civil partnership:
1 Aug 2017. The effective date for the will would be 1 Aug 2017. On marriage, any will/codicil made prior to marriage is revoked.
Codicils must comply with the same requirements as a will under s.9 WA. In this case, a client may die intestate, unless they:
Made a new will.
When testator wants several amendments to a will, or where there Made a will expressly in contemplation of a particular marriage
would be more than one codicil, advise the client to make a new will.
Divorce/dissolution/nullity:
Example: If testator separates from their spouse but no decree absolute/
Codicil: ‘I GIVE my house and my books to my friend Andrea’ annulment order is made, the will remains valid. – Advise to make a new
will.
Under Samina’s will:
1. Bill would have received £100 – codicil revokes Bill’s gift so that If testator is divorced, will is still valid but it is interpreted as if former
he will no longer receive £100 spouse had died on the date of the decree absolute:
2. Zara would have inherited any piano Samina owned – there is no Appointment of former spouse as executor/trustee is ineffective
effect on the gift to Zara. Gift in the will to former spouse fails
3. Teena would have inherited all the rest of the personal chattels Spouse can still inherit if testator states he wants spouse to
that are “not otherwise specifically bequeathed by the will or inherit notwithstanding divorce.
any codicil hereto” – Under the will Teena would have received
the books (personal chattel). There is now a codicil which Deliberate act of the testator:
specifically gives away the books and this takes priority.
4. the residue of the estate would pass to Tony. – The £100 Bill Revocation by a new will/codicil:
would have received now forms part of the residue of the estate Later will/codicil will revoke the will if it has an express revocation
that passes to Tony. clause – ‘this is the last will and testament’ would not on its own suffice.
ALTERATIONS TO A WILL: Without this clause, testator will have two valid wills and the combined
effect of the two is followed. If inconsistent, later will revokes the earlier.
Valid alterations: Destruction:
Completion of a blank space – valid. Wills Act A will may be revoked by:
Alteration made before the will is executed – valid. The testator destroying the document – eg. burning, tearing,
otherwise mutilating the will
Attested alteration before or after execution, signed by testator With the intention to revoke the will when destroying it.
and two witnesses, initials next to alteration – valid. Writing cancelled/revoked across the will is not enough.
I GIVE a legacy of £2,000 to my grandson Andrew. Intention to revoke may be:
NA TJ FP
Absolute – effective immediately, or
Here: valid alteration, initialled and its effect is that grandson Conditional – effective only when the condition is satisfied.
Andrew will not receive anything.
Dependant relative revocation:
Invalid alterations:
The court may save the will even if it was torn/destroyed by applying the
An unattested alteration is invalid. doctrine of Dependant relative revocation. – This is used if the intention
of the testator to revoke the will was conditional on the occurrence of
I GIVE a legacy of £2,000 to my grandson Andrew. a future event. If that event did not occur, then the will may be held to
be valid.
Strike through is unattested so invalid. However, as original gift
cannot be deciphered, Andrew will inherit nothing. INTERPRETING WILLS:
I GIVE a legacy of £2,005 to my grandson Andrew. The provisions of the will must be interpreted before the assets can be
distributed. – Check which provisions fail and which ones are valid.
Strike through is unattested so invalid but here part of the
original gift (£5) is still visible. Andrew will receive this. While some provisions may fail within the will, the will remains valid
except for those failed provisions.
I GIVE a legacy of £2,005 to my grandson Andrew.
£100 The will speaks from the date of death not the date when it was made
unless contrary intention is shown.
Strike through and £100 is unattested so invalid. If there is
extrinsic evidence that can identify the original gift (e.g. copy of The effect of gifts:
the will without alteration), Andrew would receive the gift. If no
evidence, then Andrew receives nothing. Legacy = a gift of personal property.
Devise = a gift of real estate.
An unattested alteration can be given effect to if:
There is evidence that alteration is made on or prior to Doctrine of ademption = if the testator no longer owns any of the
execution. Evidence may be: the will itself or affidavit from properties stated in the will at the time of death, the gift will fail.
whoever drafted the will or a witness, or
will is later re-executed or confirmed by a later codicil. Any of the legacies may be in the form of a trust.
Wills and Administration of Estates – SQE notes | Page 2 of 14
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