IPP WIL WS1/2
Wills and Administration of Estates
Is the will valid?
Requirements for a valid will: The testator must have:
Capacity
Intention
Complied with the formalities of the 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 the test in Banks v Goodfellow
The testator must have “soundness of mind, memory and understanding”. i.e. the
testator must have understood:
The nature of his act and its broad effects
o 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.
o E.g. family members.
o Testator must have considered these, but it is open to him to then
ignore these.
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 PR’s will have to prove capacity –
burden of proof.
Her GP should make judgement as to capacity – better to have as witness to will
Intention The testator must have intended to create a will i.e.:
The testator must have general intention
i.e. he must have intended to make a will as opposed any other sort of document.
The testator must have specific intention
i.e. he must have intended to make the particular will in question; the testator must
know and approve its contents.
It is presumed that the testator intended to create a will if he:
o Has capacity
o Executed the will having read it.
UNLESS:
o The testator is blind or illiterate, or someone else signed it on his behalf.
In such circumstances the probate registrar will require evidence to demonstrate
intention.
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.
o There are “suspicious circumstances” surrounding the drafting of the will e.g. if the will have
been prepared by someone who is a major beneficiary under the will.
Undue If a testator has capacity and intention, to challenge the will, a person must prove invalidity on the
influence grounds of undue Influence or mistake.
and Undue Influence
mistake o A will, or parts of a will will be invalid if it was created as a result of:
Force or fear: of actual or threatened injury.
Fraud: e.g. being misled by some pretence
Undue influence: where the testator’s freedom of choice was overcome by intolerable
pressure, even though his judgement remained unconvinced.
1
,IPP WIL WS1/2
o Person who seeks to challenge a will must prove this is the case – never presumed – but
difficult to prove because died.
CPR – encourages encourage of info – access to GP and hospital records – may identify as
particularly vulnerable and persuadable.
Ask questions to solicitor how was will executed – who else was there? Under obligation
to reveal that info
o NB: Requirement of proof is different for gifts in a will and lifetime gifts.
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
o Any words included without the knowledge and approval of the testator will be omitted from
probate.
o Does not cover situations where the testator misunderstood the meaning of the words used. In
this case the will remains valid.
Formalities s9 of the Wills Act 1837
A will must be:
In writing, and signed:
By the testator or
By some other person in his presence, and under his direction.
It must appear that the testator, by signing the will, intended to give effect to the will.
The signature must be made or the testator must acknowledge that the signature is his in the
presence of two or more witnesses.
If one of the two witnesses does not see the actual signing or the acknowledgement, the will
shall be considered 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 that they believe that the signature is that of the testator) and sign the
will.
Or acknowledge their signature i.e. (acknowledge that it is their signature that appears on
the document).
Witnesses:
o Must be capable of understanding the significance of being a witness.
o Executor can be witness
o If the witness, or their spouse, are beneficiaries under the will, the will remains valid, though
any gifts to the witnesses will fail/lose their entitlement
2
, IPP WIL WS1/2
Revocation and alteration
Revocation By a later valid will or codicil (both impliedly or expressly)
o NB: A codicil is an addition or supplement to a will.
o This will revoke an earlier will in whole or in part.
o Codicil will either expressly revoke or do so by implication.
o Revocation may be invalid if it is conditional upon a particular event which doesn’t happen
By marriage or civil partnership:
o s18; automatic on marriage or CP, unless will was made when testator was expecting to
marry
o s18A: post-divorce will is still valid – but the gift to the ex-spouse is invalid – they are
treated to have died on divorce date so gift also fails
Full physical destruction with intention to revoke – in presence of testator and by his destruction
(s20)
By burning, tearing or otherwise destroying the same.
By the testator or
In the presence of the testator by the testator’s direction with the intention of revoking the
will.
This requires both physical destruction and intention to revoke in testator’s present and by
his direction.
NB: Physical destruction is necessary. Crossing out or simply writing the words
“revoked” across the will is not sufficient.
Intention is necessary. Accidental destruction will not result in the will being revoked.
Destruction by another in a different room will not revoke the will even if it is at the
testator’s direction.
Alteration Any alteration must be properly executed like the original (initials of testator and witnesses in
margin would suffice): a codicil.
Invalid alteration means original wording stands
o Original gift can take effect provided the wording is still apparent
o If wording cannot be read, then it is deemed to be revoked by destruction – but rest
remains valid if it can be read
o Court may decide intention to revoke was conditional – only if substitution took effect
Alteration republishes the will as if it was made on that date (this is important for identifying
specific property such as “my car/house/watch”)
3
Wills and Administration of Estates
Is the will valid?
Requirements for a valid will: The testator must have:
Capacity
Intention
Complied with the formalities of the 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 the test in Banks v Goodfellow
The testator must have “soundness of mind, memory and understanding”. i.e. the
testator must have understood:
The nature of his act and its broad effects
o 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.
o E.g. family members.
o Testator must have considered these, but it is open to him to then
ignore these.
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 PR’s will have to prove capacity –
burden of proof.
Her GP should make judgement as to capacity – better to have as witness to will
Intention The testator must have intended to create a will i.e.:
The testator must have general intention
i.e. he must have intended to make a will as opposed any other sort of document.
The testator must have specific intention
i.e. he must have intended to make the particular will in question; the testator must
know and approve its contents.
It is presumed that the testator intended to create a will if he:
o Has capacity
o Executed the will having read it.
UNLESS:
o The testator is blind or illiterate, or someone else signed it on his behalf.
In such circumstances the probate registrar will require evidence to demonstrate
intention.
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.
o There are “suspicious circumstances” surrounding the drafting of the will e.g. if the will have
been prepared by someone who is a major beneficiary under the will.
Undue If a testator has capacity and intention, to challenge the will, a person must prove invalidity on the
influence grounds of undue Influence or mistake.
and Undue Influence
mistake o A will, or parts of a will will be invalid if it was created as a result of:
Force or fear: of actual or threatened injury.
Fraud: e.g. being misled by some pretence
Undue influence: where the testator’s freedom of choice was overcome by intolerable
pressure, even though his judgement remained unconvinced.
1
,IPP WIL WS1/2
o Person who seeks to challenge a will must prove this is the case – never presumed – but
difficult to prove because died.
CPR – encourages encourage of info – access to GP and hospital records – may identify as
particularly vulnerable and persuadable.
Ask questions to solicitor how was will executed – who else was there? Under obligation
to reveal that info
o NB: Requirement of proof is different for gifts in a will and lifetime gifts.
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
o Any words included without the knowledge and approval of the testator will be omitted from
probate.
o Does not cover situations where the testator misunderstood the meaning of the words used. In
this case the will remains valid.
Formalities s9 of the Wills Act 1837
A will must be:
In writing, and signed:
By the testator or
By some other person in his presence, and under his direction.
It must appear that the testator, by signing the will, intended to give effect to the will.
The signature must be made or the testator must acknowledge that the signature is his in the
presence of two or more witnesses.
If one of the two witnesses does not see the actual signing or the acknowledgement, the will
shall be considered 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 that they believe that the signature is that of the testator) and sign the
will.
Or acknowledge their signature i.e. (acknowledge that it is their signature that appears on
the document).
Witnesses:
o Must be capable of understanding the significance of being a witness.
o Executor can be witness
o If the witness, or their spouse, are beneficiaries under the will, the will remains valid, though
any gifts to the witnesses will fail/lose their entitlement
2
, IPP WIL WS1/2
Revocation and alteration
Revocation By a later valid will or codicil (both impliedly or expressly)
o NB: A codicil is an addition or supplement to a will.
o This will revoke an earlier will in whole or in part.
o Codicil will either expressly revoke or do so by implication.
o Revocation may be invalid if it is conditional upon a particular event which doesn’t happen
By marriage or civil partnership:
o s18; automatic on marriage or CP, unless will was made when testator was expecting to
marry
o s18A: post-divorce will is still valid – but the gift to the ex-spouse is invalid – they are
treated to have died on divorce date so gift also fails
Full physical destruction with intention to revoke – in presence of testator and by his destruction
(s20)
By burning, tearing or otherwise destroying the same.
By the testator or
In the presence of the testator by the testator’s direction with the intention of revoking the
will.
This requires both physical destruction and intention to revoke in testator’s present and by
his direction.
NB: Physical destruction is necessary. Crossing out or simply writing the words
“revoked” across the will is not sufficient.
Intention is necessary. Accidental destruction will not result in the will being revoked.
Destruction by another in a different room will not revoke the will even if it is at the
testator’s direction.
Alteration Any alteration must be properly executed like the original (initials of testator and witnesses in
margin would suffice): a codicil.
Invalid alteration means original wording stands
o Original gift can take effect provided the wording is still apparent
o If wording cannot be read, then it is deemed to be revoked by destruction – but rest
remains valid if it can be read
o Court may decide intention to revoke was conditional – only if substitution took effect
Alteration republishes the will as if it was made on that date (this is important for identifying
specific property such as “my car/house/watch”)
3
