WIILS & ADMINISTRATION OF ESTATES NOTES
Testator: Person who makes the will
If the deceased made a valid will: He died testate (the terms of the will determine who inherits the
succession estate)
If the deceased died without a valid will: He died intestate (Administration of Estates Act
1925 intestacy rules apply to inheritance)
If a valid will doesn’t dispose of all possessions: partially intestate (follow the will for distributed property
then follow intestacy rules for undisposed property)
REQUIREMENTS FOR A VALID WILL
THE TESTATOR MUST HAVE:
Capacity
Intention
Complied with formalities of Wills Act 1837
CAPACITY
To be valid, the testator must have had capacity to create the will:
The testator must be over 18, and;
Must have had the requisite mental capacity per test in Banks v Goodfellow
“The testator must have ‘soundness of mind, memory and understanding’ ie. The testator must
have understood
- The nature and extent and its broad effects (i.e that he is writing a will and he knows what it
means)
- The extent of his property
- The moral claims he ought to consider (i.e family members, the testator must have considered
these, but it open to ignore these.) HE MUST NOT BE SUFFERING FROM ANY INSANE DELUSION
AFFECTING THE DISPOTION OF PROPERTY
Proof and presumptions
Common law: The person who puts forward a will has to probe all the necessary elemants are
present and that the testator has the mental capacity
There is a presumption that the testator had capacity if they show no sign of mental confusion
However, if there is anything to put his capacity in doubt, the personal representatives (PR’s)
will have to prove capacity on the basis of Banks v Goodfellow test. (they have the burden of
proof)
Mental Capacity Act 2005 s1(2) – ‘A person must be assumed to have capacity unless it can be
established that he lacks capacity’.
INTENTION
When the will is signed, the testator must have intended to create a will. I.e:
The testator must have had general information (i.e he must have intended to make a will as
opposed to any other sort of document)
The testator must have had specific intention (i.e he must have intended to make the particular
will in question; the testator must know and approve of its contents).
Proof and presumptions
Burden of proving testators knowledge & approval falls on person putting forward the will
It is presumed that the testator intended to create a will if he:
- Has capacity
- Executed the will having read through it
UNLESS:
- The testator is blind, illiterate or someone else signed it on his behalf. In such
, circumstances, the probate registrar will require evidence to demonstrate knowledge and
approval.
(e.g. A statement at the end of the will confirming that the will was read over to the testator,
or read by the testator, and they knew and approved its contents.
- There are “suspicious circumstances” surrounding the drafting & execution of the will. E.g (if
the will had been prepared by someone who is a major beneficiary/close relative of such
under the will.
CONDUCT
Must act with honesty, integrity and in best interests of the client
FORCE, FEAR, FRAUD, UNDUE INFLUENCE OR MISTAKE
If the testator has capacity and appears to know and prove the contents of he will, to challenge a will,
a person must prove invalidity on the grounds of undue influence or mistake.
No presumptions, the person claiming that the will is invalid must prove it
Force, fear, fraud or undue influence
- A will, or parts of a will are invalid if it was created as a result of:
- Force or fear: of actual or threatened injury
- Fraud: such as being misled by some pretence
- Undue influence: Where the testators freedom of choice was overcome by intolerable
pressure, even though his judgement remained unconvinced
A person who seeks to challenge a will must prove this is the case. This is never presumed but
difficult to prove as testator died.
Requirement of proof:
- Relationship of trust and confidence
- If a donor makes a lifetime gift which requires explanation (e.g because it is large in
comparison to the donor’s other assets) there is a presumption of undue influence.
i.e the gift will fail unless the recipient can provide the court with a satisfactory explanation as
to why the gift was made.
Mistake
- Any words included without the knowledge and approval of the testator will be omitted from
probate. Not where the testator misunderstood the legal meaning of words in a will
FORMALITIES
S9 of the Wills Act 1837
No will shall be valid unless:
It is in writing, and signed
- By the testator
- By some other person in his presence and under his direction
It appears that the testator, by signing the will, intended to give effect to the will
The signature is made or acknowledged by the testator in the presence of two or more
witnesses at the same time
- If one of the two witnesses did not see the signing or the acknowledgement, the will is
invalid. It is not necessary for the witnesses to know the contents of the document
Each witness must, in the presence of the testator, either:
- Attest (i.e confirm they believe the signature is that of the testator) and sign the will
, - Or acknowledge his signature (i.e acknowledge that it is their signature that appears on the
document)
In the presence of the testator
Exception to the s.9 rule : where will is made on military service/mariner/seamen at sea, they are valid
and can be in any form including an oral statement (s11 Wills Act 1837) but requirement is that testator
must intend to dispose of his property after death
Proof and presumptions
Should include an attestation clause reciting that s.9 formalities were observed i.e “Signed by the
testator in our joint presence then by us in his/hers” (Will is valid unless proof formalities were
not observed)
Witnesses
- Must be capable of understanding the significance of being a witness
- Executor can be a witness
- If the witness, or their spouse are beneficiaries under the will, the will remains valid, but
any gifts to the witnesses will fail (s.15)
A solicitor must check whether s.9 and s.15 has been complied with.
REVOCATION AND ALTERATION OF A WILL
, REVOCATION
A testator can always revoke a will during his lifetime.
3 Ways of revoking a will: Later will or codicil, marriage or formation of a civil partnership, destruction
By later valid will or codicil (s20 WA 1837)
- A will may be revoked in whole or in part by a later will or codicil. Normally, a will contains an
express clause revoking all earlier wills and codicils
- If there is no express revocation clause, it operates to revoke any earlier will or codicil by the
implication that the two are inconsistent.
- Exceptionally, the court may decide that a testator’s intention to revoke an earlier will by an
express revocation clause was conditional upon a particular event. (eg the effectiveness of a
gift in the new will) If that condition is not satisfied, the revocation may be held to be invalid
and the earlier will remains effective. “the doctrine of dependant relative revocation”
By marriage or formation of a civil partnership
- If testator marries or forms a CP after executing a will, the will is automatically revoked.
UNLELSS the will was made when the testator was expecting to marry (s18 WA 1837) which
replaced Administration of Justice Act 1982.
- Unless the will states that it is conditional on the marriage or CP taking place, the will will take
effect unless expressly revoked even if marriage/CP does not happen
- S18 WA: where a CP is converted into a marriage, conversion will NOT revoke an existing will
of either party nor affect any disposition on the wills
- Part 8 of The Regulations – Same sex couples can covert a CP into same sex marriage,
opposite sex spouses cannot convert a marriage into an opposite sex CP.
- S18A WA: post-divorce or CP is dissolved: will is still valid BUT
a) Provisions of the will appointing the former spouse or civil partner as executor or trustee
take effect as if the former spouse or CP had died on the date on which the marriage or CP
was dissolved/annulled
b) Any property, interest in property which is devised or bequeathed to the former spouse/CP
passes as if the former spouse had died on that date
Destruction (burning, tearing or otherwise destroying the same by the testator or by some
person in his presence and by his direction with the intention of revoking
- A will can be revoked by burning, tearing or otherwise destroying
- By the testator
- In the presence of a testator or by the testator’s direction
- With the intention of revoking the will
- Requires both physical destruction and intention to revoke in testators presence and by his
direction OTHERWISE INSUFFICIENT.
- Physical destruction is necessary: Symbolic destruction – crossing out or simply writing the
words ‘revoked’ is not sufficient
- BUT if a vital part (eg the signature is destroyed) partial destruction could revoke the will
HOWEVER if part that is destroyed is less important, partial destruction may only revoke the
part that was destroyed.
- Intention is necessary Accidental destruction will not result in the will being revoked.
- If its contents can be reconstructed (e.g a copy) an order can be obtained allowing its
admission to probate as a valid will.
- Destruction by another in a different room will not revoke will even if testator directed it
ALTERATION
All alterations are invalid unless it can be proved that they were made before the will was executed
OR the alterations are properly executed like a will
Testator: Person who makes the will
If the deceased made a valid will: He died testate (the terms of the will determine who inherits the
succession estate)
If the deceased died without a valid will: He died intestate (Administration of Estates Act
1925 intestacy rules apply to inheritance)
If a valid will doesn’t dispose of all possessions: partially intestate (follow the will for distributed property
then follow intestacy rules for undisposed property)
REQUIREMENTS FOR A VALID WILL
THE TESTATOR MUST HAVE:
Capacity
Intention
Complied with formalities of Wills Act 1837
CAPACITY
To be valid, the testator must have had capacity to create the will:
The testator must be over 18, and;
Must have had the requisite mental capacity per test in Banks v Goodfellow
“The testator must have ‘soundness of mind, memory and understanding’ ie. The testator must
have understood
- The nature and extent and its broad effects (i.e that he is writing a will and he knows what it
means)
- The extent of his property
- The moral claims he ought to consider (i.e family members, the testator must have considered
these, but it open to ignore these.) HE MUST NOT BE SUFFERING FROM ANY INSANE DELUSION
AFFECTING THE DISPOTION OF PROPERTY
Proof and presumptions
Common law: The person who puts forward a will has to probe all the necessary elemants are
present and that the testator has the mental capacity
There is a presumption that the testator had capacity if they show no sign of mental confusion
However, if there is anything to put his capacity in doubt, the personal representatives (PR’s)
will have to prove capacity on the basis of Banks v Goodfellow test. (they have the burden of
proof)
Mental Capacity Act 2005 s1(2) – ‘A person must be assumed to have capacity unless it can be
established that he lacks capacity’.
INTENTION
When the will is signed, the testator must have intended to create a will. I.e:
The testator must have had general information (i.e he must have intended to make a will as
opposed to any other sort of document)
The testator must have had specific intention (i.e he must have intended to make the particular
will in question; the testator must know and approve of its contents).
Proof and presumptions
Burden of proving testators knowledge & approval falls on person putting forward the will
It is presumed that the testator intended to create a will if he:
- Has capacity
- Executed the will having read through it
UNLESS:
- The testator is blind, illiterate or someone else signed it on his behalf. In such
, circumstances, the probate registrar will require evidence to demonstrate knowledge and
approval.
(e.g. A statement at the end of the will confirming that the will was read over to the testator,
or read by the testator, and they knew and approved its contents.
- There are “suspicious circumstances” surrounding the drafting & execution of the will. E.g (if
the will had been prepared by someone who is a major beneficiary/close relative of such
under the will.
CONDUCT
Must act with honesty, integrity and in best interests of the client
FORCE, FEAR, FRAUD, UNDUE INFLUENCE OR MISTAKE
If the testator has capacity and appears to know and prove the contents of he will, to challenge a will,
a person must prove invalidity on the grounds of undue influence or mistake.
No presumptions, the person claiming that the will is invalid must prove it
Force, fear, fraud or undue influence
- A will, or parts of a will are invalid if it was created as a result of:
- Force or fear: of actual or threatened injury
- Fraud: such as being misled by some pretence
- Undue influence: Where the testators freedom of choice was overcome by intolerable
pressure, even though his judgement remained unconvinced
A person who seeks to challenge a will must prove this is the case. This is never presumed but
difficult to prove as testator died.
Requirement of proof:
- Relationship of trust and confidence
- If a donor makes a lifetime gift which requires explanation (e.g because it is large in
comparison to the donor’s other assets) there is a presumption of undue influence.
i.e the gift will fail unless the recipient can provide the court with a satisfactory explanation as
to why the gift was made.
Mistake
- Any words included without the knowledge and approval of the testator will be omitted from
probate. Not where the testator misunderstood the legal meaning of words in a will
FORMALITIES
S9 of the Wills Act 1837
No will shall be valid unless:
It is in writing, and signed
- By the testator
- By some other person in his presence and under his direction
It appears that the testator, by signing the will, intended to give effect to the will
The signature is made or acknowledged by the testator in the presence of two or more
witnesses at the same time
- If one of the two witnesses did not see the signing or the acknowledgement, the will is
invalid. It is not necessary for the witnesses to know the contents of the document
Each witness must, in the presence of the testator, either:
- Attest (i.e confirm they believe the signature is that of the testator) and sign the will
, - Or acknowledge his signature (i.e acknowledge that it is their signature that appears on the
document)
In the presence of the testator
Exception to the s.9 rule : where will is made on military service/mariner/seamen at sea, they are valid
and can be in any form including an oral statement (s11 Wills Act 1837) but requirement is that testator
must intend to dispose of his property after death
Proof and presumptions
Should include an attestation clause reciting that s.9 formalities were observed i.e “Signed by the
testator in our joint presence then by us in his/hers” (Will is valid unless proof formalities were
not observed)
Witnesses
- Must be capable of understanding the significance of being a witness
- Executor can be a witness
- If the witness, or their spouse are beneficiaries under the will, the will remains valid, but
any gifts to the witnesses will fail (s.15)
A solicitor must check whether s.9 and s.15 has been complied with.
REVOCATION AND ALTERATION OF A WILL
, REVOCATION
A testator can always revoke a will during his lifetime.
3 Ways of revoking a will: Later will or codicil, marriage or formation of a civil partnership, destruction
By later valid will or codicil (s20 WA 1837)
- A will may be revoked in whole or in part by a later will or codicil. Normally, a will contains an
express clause revoking all earlier wills and codicils
- If there is no express revocation clause, it operates to revoke any earlier will or codicil by the
implication that the two are inconsistent.
- Exceptionally, the court may decide that a testator’s intention to revoke an earlier will by an
express revocation clause was conditional upon a particular event. (eg the effectiveness of a
gift in the new will) If that condition is not satisfied, the revocation may be held to be invalid
and the earlier will remains effective. “the doctrine of dependant relative revocation”
By marriage or formation of a civil partnership
- If testator marries or forms a CP after executing a will, the will is automatically revoked.
UNLELSS the will was made when the testator was expecting to marry (s18 WA 1837) which
replaced Administration of Justice Act 1982.
- Unless the will states that it is conditional on the marriage or CP taking place, the will will take
effect unless expressly revoked even if marriage/CP does not happen
- S18 WA: where a CP is converted into a marriage, conversion will NOT revoke an existing will
of either party nor affect any disposition on the wills
- Part 8 of The Regulations – Same sex couples can covert a CP into same sex marriage,
opposite sex spouses cannot convert a marriage into an opposite sex CP.
- S18A WA: post-divorce or CP is dissolved: will is still valid BUT
a) Provisions of the will appointing the former spouse or civil partner as executor or trustee
take effect as if the former spouse or CP had died on the date on which the marriage or CP
was dissolved/annulled
b) Any property, interest in property which is devised or bequeathed to the former spouse/CP
passes as if the former spouse had died on that date
Destruction (burning, tearing or otherwise destroying the same by the testator or by some
person in his presence and by his direction with the intention of revoking
- A will can be revoked by burning, tearing or otherwise destroying
- By the testator
- In the presence of a testator or by the testator’s direction
- With the intention of revoking the will
- Requires both physical destruction and intention to revoke in testators presence and by his
direction OTHERWISE INSUFFICIENT.
- Physical destruction is necessary: Symbolic destruction – crossing out or simply writing the
words ‘revoked’ is not sufficient
- BUT if a vital part (eg the signature is destroyed) partial destruction could revoke the will
HOWEVER if part that is destroyed is less important, partial destruction may only revoke the
part that was destroyed.
- Intention is necessary Accidental destruction will not result in the will being revoked.
- If its contents can be reconstructed (e.g a copy) an order can be obtained allowing its
admission to probate as a valid will.
- Destruction by another in a different room will not revoke will even if testator directed it
ALTERATION
All alterations are invalid unless it can be proved that they were made before the will was executed
OR the alterations are properly executed like a will
