Validity of Wills and How Property Passes on Death
After a person’s death, a solicitor will deal with the deceased’s assets in the following
order:
a) Property passing outside the will
b) Property passing under the will
c) Any property not disposed of passing on intestacy
Property Passing Outside the Wills and Intestacy Rules
A number of different kinds of property pass independently of the terms of any wills
and intestacy rules:
a) Joint Property
a. Where property is held by more than one person as beneficial joint tenants,
on the death of one joint tenant, their interest passes by survivorship.
Survivorship does not apply to tenant in common
b) Insurance policies
a. Where a person takes out a simple policy of life assurance, the benefit of
that policy belongs to them, on death, the policy matures, and the
company will pay the proceeds to the deceased’s personal
representative (PR), the PR will distribute according to the terms of will
and the intestacy rule.
b. However, where a person takes out a life assurance policy and writes it
in trust for the benefit of specified individuals or is assigned to named
beneficiaries, the benefit no longer belongs to the policy holder. On the
policy holder’s death, the policy matures, and the insurance company will
pay the proceeds to the named beneficiaries.
c) Pension benefits
a. Many pension schemes provide for the payment of benefits if an employee
dies ‘in service’. May leave letter of wishes but not binding.
b. A lump sum is paid by the trustees of the pension fund to members of the
family or dependents, chosen at the trustees’ discretion.
d) Trust property
a. Many equitable interests come to an end on the beneficiary's death, e.g.,
life interest. The trust property will devolve according to the terms of the
trust not the deceased’s will.
Terminology
• Revocation clause: revokes prior wills.
• Direction as to disposal of the body: No legal effect.
• Appointment of executors: Appoint the person who deals with
testator’s/testatrix’s affairs after death.
• Gifts:
, o Specific gift: Gift of specific items which the testator owns, which is
distinguished from the rest of their assets (e.g., items, house).
o General gift (rare): Gift of an item corresponding to a description. If the
testator does not own the item at death, the executors must obtain the item
using funds from the estate.
o Demonstrative gift: Gift that is general in nature but is directed to be paid
from specific fund. If there is not enough from the specified fund, the legacy
is paid, in whole or in part, from the rest of the estates (i.e., general in nature).
o Pecuniary gift: Gift of money.
o Residuary gift: Comprises of all the money and property left after the
testator’s debts, the expenses of dealing with the estate and the other gifts
made under the will have all been paid.
Requirements for a Valid Will
Capacity
An individual must be aged 18 or over and must have the requisite mental capacity,
i.e., ‘soundness of mind, memory and understanding (Banks v Goodfellow).
Testators must understand:
a) The nature of their act and its broad effects (the fact that they are making a will
which will have effect on their death.
b) The extent of their property. AND
c) The moral claims they ought to consider
General rule: Testators must have capacity at the time they execute their wills
• Mental Capacity Act 2005: Statutory test to determine whether a person has
capacity to take a decision.
• If a testator is incapable of making a valid will, a statutory will may be made on
their behalf under MCA.
Golden Rule: A solicitor preparing a will for a testator whose mental state is in doubt
should follow the golden rule.
• The solicitor should ask a medical practitioner to provide a written report
confirming that the testator has testamentary capacity and ask the doctor to
witness the will. The solicitor should record their own view of the testator’s
capacity in a file note. Written evidence should be kept in case of challenges.
Exception: Can be valid if the testator has the capacity when they give instructions,
even if they lose capacity by the time it is executed (Parker v Felgate).
• Instructions must be given to a solicitor and at the time of execution, the testator
must appreciate they are signing a will prepared in accordance with their
previous instructions.
The person who is asserting that a will is valid has the burden of proof.
,• Executors can rely on the presumption of capacity if the will is rational on its
face and the testator showed no evidence of mental confusion before making the
will.
• Court less likely to find that the testator lacked capacity if a rational will was
prepared by an experienced, independent solicitor who met the testator and
explained the will to them.
Intention
• When the will is signed, the testator must have both general and specific
intention.
o A testator must intend to make a will and must intend to make that particular
one being executed. The testator must know and approve the contents of
the will at the time when the will is executed unless Parker v Felgate applies.
• General rule: Burden of proof is for the person asserting that a will is valid to
prove it. Usually, not necessary to prove intention because of presumption of
knowledge and approval.
Presumption of Knowledge and Approval
• A testator who has capacity and has read and executed the will is presumed to
have the requisite knowledge and approval.
• A solicitor should not accept instructions from a third party to draw up a will for a
testator. They should interview the testator in the absence of the third party to
ensure that any will drafted reflects the testator’s wishes.
Does not apply if:
a) If the testator was blind / illiterate / someone else signed on their behalf.
a. HMCTS will require evidence to prove knowledge and approval before they
will issue a grant of probate.
b. Usual in these situations to include a statement at the end of the will stating
that the will was read over to the testator or read by the testator who
knew and approved the contents.
b) If there a suspicious circumstances surrounding the drafting and/or
execution of the will.
a. The executor or person putting forward the will must remove the suspicion
by proving that the testator did actually know and approve the will’s contents.
c) If all or part of the will was included by mistake.
a. Any words included without the knowledge and approval of the testator will
be omitted from probate (actual mistake not misunderstanding as to legal
meaning of words used in the will).
Where a testator with capacity appears to have known and approved the
contents, any person who wishes to challenge the will must prove one or more of
the following to prevent it being admitted to probate. i.e., casts doubt on his
knowledge and approval.:
a) Force or fear (through actual or threatened injury).
, b) Fraud (e.g., after being misled by some pretence).
c) Undue influence (in wills means coercion or duress). It is necessary to prove
undue influence (very difficult). Failure to prove results in penalised in costs.
Formalities of Execution
Section 9 Wills Act 1837: No will shall be valid unless -
a) It is in writing and signed by the testator, or by some other person in his
presence and by his direction; and
a. An electronic will held only on a computer would probably not be in writing.
b. Any kind of signature is acceptable, provided the testator intends the
signature to represent their name. Crosses and thumbprints have been
accepted.
b) It appears that the testator intended by his signature to give effect to the
will; and
c) The signature is made or acknowledged by the testator in the presence of
two or more witnesses present at the same time; AND
a. Presence requires mental and physical presence.
b. Witness must be aware that the testator is signing a document but does not
need to know it is a will (mental).
c. Must be able to see the testator signing, unobstructed line of sight between
the witness and the testator (physical).
d) Each witness either:
i) Attests and signs the will; or
ii) Acknowledges his signature in the presence of the testator, i.e., confirms
that the signature is theirs but not necessarily in the presence of any other
witness.
If either of the witnesses are a beneficiary under a will / the spouse or civil partner
of a beneficiary, will remains valid, but the gift to the witness or the witness’s spouse
or civil partner fails (s.15 Wills Act 1837).
Remote Witnessing
Presence now includes videoconference or other visual transmission. Only applies
where testator sign their wills themselves. If signed on behalf of a testator, must be
in the actual presence of the testator.
Government guidance for remote witnessing:
1. Witnessing pre-recorded videos is not permitted.
2. The witnesses and testator can all be at different locations.
3. The testator must physically sign the will or acknowledge an earlier physical
signature, signature cannot be electronic. The testator must date the will with the
date of signature.
4. The will must then be taken or posted to the witnesses.
5. The witnesses must physically sign the will in the virtual presence of the testator,
and, if possible, in the virtual or physical presence of each other.
6. The witnesses will sign with the date on which they are signing.
The execution process is not complete until everyone has signed.
After a person’s death, a solicitor will deal with the deceased’s assets in the following
order:
a) Property passing outside the will
b) Property passing under the will
c) Any property not disposed of passing on intestacy
Property Passing Outside the Wills and Intestacy Rules
A number of different kinds of property pass independently of the terms of any wills
and intestacy rules:
a) Joint Property
a. Where property is held by more than one person as beneficial joint tenants,
on the death of one joint tenant, their interest passes by survivorship.
Survivorship does not apply to tenant in common
b) Insurance policies
a. Where a person takes out a simple policy of life assurance, the benefit of
that policy belongs to them, on death, the policy matures, and the
company will pay the proceeds to the deceased’s personal
representative (PR), the PR will distribute according to the terms of will
and the intestacy rule.
b. However, where a person takes out a life assurance policy and writes it
in trust for the benefit of specified individuals or is assigned to named
beneficiaries, the benefit no longer belongs to the policy holder. On the
policy holder’s death, the policy matures, and the insurance company will
pay the proceeds to the named beneficiaries.
c) Pension benefits
a. Many pension schemes provide for the payment of benefits if an employee
dies ‘in service’. May leave letter of wishes but not binding.
b. A lump sum is paid by the trustees of the pension fund to members of the
family or dependents, chosen at the trustees’ discretion.
d) Trust property
a. Many equitable interests come to an end on the beneficiary's death, e.g.,
life interest. The trust property will devolve according to the terms of the
trust not the deceased’s will.
Terminology
• Revocation clause: revokes prior wills.
• Direction as to disposal of the body: No legal effect.
• Appointment of executors: Appoint the person who deals with
testator’s/testatrix’s affairs after death.
• Gifts:
, o Specific gift: Gift of specific items which the testator owns, which is
distinguished from the rest of their assets (e.g., items, house).
o General gift (rare): Gift of an item corresponding to a description. If the
testator does not own the item at death, the executors must obtain the item
using funds from the estate.
o Demonstrative gift: Gift that is general in nature but is directed to be paid
from specific fund. If there is not enough from the specified fund, the legacy
is paid, in whole or in part, from the rest of the estates (i.e., general in nature).
o Pecuniary gift: Gift of money.
o Residuary gift: Comprises of all the money and property left after the
testator’s debts, the expenses of dealing with the estate and the other gifts
made under the will have all been paid.
Requirements for a Valid Will
Capacity
An individual must be aged 18 or over and must have the requisite mental capacity,
i.e., ‘soundness of mind, memory and understanding (Banks v Goodfellow).
Testators must understand:
a) The nature of their act and its broad effects (the fact that they are making a will
which will have effect on their death.
b) The extent of their property. AND
c) The moral claims they ought to consider
General rule: Testators must have capacity at the time they execute their wills
• Mental Capacity Act 2005: Statutory test to determine whether a person has
capacity to take a decision.
• If a testator is incapable of making a valid will, a statutory will may be made on
their behalf under MCA.
Golden Rule: A solicitor preparing a will for a testator whose mental state is in doubt
should follow the golden rule.
• The solicitor should ask a medical practitioner to provide a written report
confirming that the testator has testamentary capacity and ask the doctor to
witness the will. The solicitor should record their own view of the testator’s
capacity in a file note. Written evidence should be kept in case of challenges.
Exception: Can be valid if the testator has the capacity when they give instructions,
even if they lose capacity by the time it is executed (Parker v Felgate).
• Instructions must be given to a solicitor and at the time of execution, the testator
must appreciate they are signing a will prepared in accordance with their
previous instructions.
The person who is asserting that a will is valid has the burden of proof.
,• Executors can rely on the presumption of capacity if the will is rational on its
face and the testator showed no evidence of mental confusion before making the
will.
• Court less likely to find that the testator lacked capacity if a rational will was
prepared by an experienced, independent solicitor who met the testator and
explained the will to them.
Intention
• When the will is signed, the testator must have both general and specific
intention.
o A testator must intend to make a will and must intend to make that particular
one being executed. The testator must know and approve the contents of
the will at the time when the will is executed unless Parker v Felgate applies.
• General rule: Burden of proof is for the person asserting that a will is valid to
prove it. Usually, not necessary to prove intention because of presumption of
knowledge and approval.
Presumption of Knowledge and Approval
• A testator who has capacity and has read and executed the will is presumed to
have the requisite knowledge and approval.
• A solicitor should not accept instructions from a third party to draw up a will for a
testator. They should interview the testator in the absence of the third party to
ensure that any will drafted reflects the testator’s wishes.
Does not apply if:
a) If the testator was blind / illiterate / someone else signed on their behalf.
a. HMCTS will require evidence to prove knowledge and approval before they
will issue a grant of probate.
b. Usual in these situations to include a statement at the end of the will stating
that the will was read over to the testator or read by the testator who
knew and approved the contents.
b) If there a suspicious circumstances surrounding the drafting and/or
execution of the will.
a. The executor or person putting forward the will must remove the suspicion
by proving that the testator did actually know and approve the will’s contents.
c) If all or part of the will was included by mistake.
a. Any words included without the knowledge and approval of the testator will
be omitted from probate (actual mistake not misunderstanding as to legal
meaning of words used in the will).
Where a testator with capacity appears to have known and approved the
contents, any person who wishes to challenge the will must prove one or more of
the following to prevent it being admitted to probate. i.e., casts doubt on his
knowledge and approval.:
a) Force or fear (through actual or threatened injury).
, b) Fraud (e.g., after being misled by some pretence).
c) Undue influence (in wills means coercion or duress). It is necessary to prove
undue influence (very difficult). Failure to prove results in penalised in costs.
Formalities of Execution
Section 9 Wills Act 1837: No will shall be valid unless -
a) It is in writing and signed by the testator, or by some other person in his
presence and by his direction; and
a. An electronic will held only on a computer would probably not be in writing.
b. Any kind of signature is acceptable, provided the testator intends the
signature to represent their name. Crosses and thumbprints have been
accepted.
b) It appears that the testator intended by his signature to give effect to the
will; and
c) The signature is made or acknowledged by the testator in the presence of
two or more witnesses present at the same time; AND
a. Presence requires mental and physical presence.
b. Witness must be aware that the testator is signing a document but does not
need to know it is a will (mental).
c. Must be able to see the testator signing, unobstructed line of sight between
the witness and the testator (physical).
d) Each witness either:
i) Attests and signs the will; or
ii) Acknowledges his signature in the presence of the testator, i.e., confirms
that the signature is theirs but not necessarily in the presence of any other
witness.
If either of the witnesses are a beneficiary under a will / the spouse or civil partner
of a beneficiary, will remains valid, but the gift to the witness or the witness’s spouse
or civil partner fails (s.15 Wills Act 1837).
Remote Witnessing
Presence now includes videoconference or other visual transmission. Only applies
where testator sign their wills themselves. If signed on behalf of a testator, must be
in the actual presence of the testator.
Government guidance for remote witnessing:
1. Witnessing pre-recorded videos is not permitted.
2. The witnesses and testator can all be at different locations.
3. The testator must physically sign the will or acknowledge an earlier physical
signature, signature cannot be electronic. The testator must date the will with the
date of signature.
4. The will must then be taken or posted to the witnesses.
5. The witnesses must physically sign the will in the virtual presence of the testator,
and, if possible, in the virtual or physical presence of each other.
6. The witnesses will sign with the date on which they are signing.
The execution process is not complete until everyone has signed.
