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Requirements for Valid

Will
Will not valid unless
proper formalities are
observed and there is
requisite Mental Capacity
Execution Formalities
Writing
Signed by Testator
Presence of two or
more witnesses
Witness to attest

Suspicious Circumstances
may require additional
evidence to satisfy the
court

Mental Capacity
Requirements to make a will
[Animus Testandi intention to execute
will]

Barry v Butlin
(1838)
[T executed will
prepared by solictor who
was major beneficiary under
it and T disinherited only son
- evidence put forward that
satisfied the court]

Knowledge and Approval
T must know and
approve of will's content
at time of execution, however
Parker v Felgate principle
may apply here too
Where will appears
valid on face it,
presumption arises
that T knew and approved
contents UNLESS
group of persons
-illiterate, dumb, or blind

Wintle v Nye
[1959]
(where solicitor
prepared will
and codicil and was beneficiary
- burden was on him
to prove - numerous factors
weighed heavily against
validity- held invalid]

Testamentary Capacity
Knowledge and approval
of Will's content
Of own free will
No undue influence or
fraud

Evidence required where T blind
or illiterate that will read over to
T before execution and he fully
understood and approved of
contents [should be
in attestation clause,
affidavit can be used also]

Other circumstances departure from previous
testamentary dispositions,
character of attesting witnesses,
shaky signature, giving benefits to
stranger, making no provisions
for closest relatives

Mental Capacity

Testamentary Capacity
Person under 18 cannot make
a will unless will is privileged
Section 5 Wills Act

Must have sound mind memory
and understanding

Knowledge and Approval
T must know and approve
of the contents of the Will;
he need not know the legal
effect.

Of own free will No Undue Influence or
Fraud
Any misleading of T is fraud;
Undue influence is the coercing
of T; he who alleges must prove.
May apply to whole or
part of the will
More pressure, more
court will invalidate will

see Moonan v Moonan (1963) 7 WIR 420

Time for Capacity
T must have testamentary
capacity at time of execution
of will.
Can be at time
instructions issued to prepare will
IF 1. Will prepared in compliance
with instructions 2. at time of
executing T capable
of understanding and understands
that he is executing will for which
he had issued instructions

Parker v Felgate
(1882)
[T gravely ill, but had
capacity when instruction
solicitor to prepare
will disposing most of
estate to children's hospital
in preference to relatives,
will prepared as per instructions,
T fell into partial coma, periodically
aroused, doctor produced will
and said "this is your will",
will signed on her behalf with
her consent - T neither
recalled specific instructions nor
understood different clauses of will
, will upheld on basis that at time
of will she understood that
executing a will she had instructed
to be prepared]

Battan Singh v Amirchand
[1948]
[PC held that such cases
called for great caution
- however court was
satisfied by evidence
that instructions which
was passed to third party
was clearly understood
and accurately received by
attorney]

Sound mind, memory
and understanding
Test is three-fold

Mental Capacity
In the Goods of Geale
(1864)
[where T used signs ,
court required evidence
of sign used]

Insane Delusions

Of own free will No Undue Influence or
Fraud
May apply to whole or
part of the will
he who alleges must prove.
More pressure, more
court will invalidate will
Any misleading of T is fraud;
Allen v M'Pherson
[Testator gave substantial
gifts to appellant in
will then executed codicil
then executed codicil
reducing gift - evidence
of difference due to false
representation of
appellant's character
-held clear case of fraud]

Undue influence is the coercing
of T
Hall v Hall
(1868)
[“… pressure of whatever
character, whether
acting on the fears or the
hopes, if so exerted
as to overpower the volition
without convincing the judgment,
is a species of restraint under
which no valid will can be made ]

Distinction between
undue coercion and
mere persuasion
- appeals to affection
and feelings of
gratitude for past
service do not invalidate
Parfitt v Lawless
(1872)
[T gave most of estate
to Roman Catholic
preiest who acted
as confessor - held
no evidence of undue
influence]

Wingrove v Wingrove
(1885)
[mere immoral influence
does not amount to
undue influence]

Understand nature of act in which
engaged and implications
[understand effect of his wishes
being carried out on his death]
Understand the extent of property he
is distributing
[need not have in mind all
details of property, disparity may leave
court in doubt as to state of mind]
Wood v Smith
[where disparity
between 17,000 pound
(which T thought he had)
and 100,000 pound
(which he had in actuality)
caused court to hold
that T lacked capacity

Understand the persons
comprising "objects of his
bounty"

Harwood v Baker
(1840)
[where terminally ill
T gave entire estate
to wife, though he appreciated
that, he could not distinguish
relatives and competing or "moral"
claims they may have had on his
estate
- held to lack capacity - hence
will invalid]

Banks v Goodfellow
(1870) LR 5 QB 549
[person who has "an understanding
of the nature of the business in
which he is engaged - who are the
objects of his bounty and the manner
in which the property is to be
distributed among them"
[what he is doing
and who gets what]]

Doesnt matter if decision is ill-willed
or motives ignoble - will not fail
for capacity
Boughton v Knight
(1873)

Delusion can deprive Testamentary
Capacity if they influence or capable
of influence provisons of the will

Dew v Clerk and Clerk
(1826)
[Delusions are
"belief in the existence
of something which no
rational person could
believe and which
could not be eradicated from
T's mind by reasoned argument"
Father's irrational aversion to
daughter held to affect
judgement when allocating
assets by will, hence held
invalidate]

Banks v Goodfellow
[contrasted with Dew
- where T's belief that he
was harassed by evil
spirits as well as by
certain dead man,
held as having no potential
impact on provisions of will
hence will upheld]

Court can omit part of the will
affected by insane delusion
Re Bohnrmann's
Estate
[clause in Will affected
by insane delusion
was omitted from
probate but rest
was granted probate]

T may be Competent in Lucid
Intervals
T may experience occasional
periods of lucidity though
incompetent generally
Act must be rational
Act must be performed in rational manner
Act must be T's own without assistance

In the Estate of Walker
(1912)
[held that Will made during
lucid interval could be valid
if - act of T was rational,
T performed in rational
manner, T's own act without
assistance from another]