Posted: Wednesday, 18 September 2019 @ 14:50
Check Your Formalities
For deaths arising after 1 January 1983 no Will is valid
It is in writing, and signed by the Testator, or by some
other person in his presence and by his direction; and
It appears that the Testator intended by his signature to
give effect to the Will; and
The signature is made or acknowledged by the Testator in the
presence of two or more witnesses present at the same time; and
Each witness either:
attests and signs the Will;
or acknowledges his signature, in the presence of the
Testator (but not normally in the presence of any other witnesses), but no form
of attestation shall be necessary.
In the event these formalities are not complied with the
will reverts to intestacy and the will is invalid.
Where Does the Will Have to Be Signed?
It DOES NOT HAVE to be “at the foot or end thereof”
(following the AJA 1982 s 17).
IT CAN BE SIGNED by someone other than the testator as it or
The signature of the testator can be merely a mark
Who Can Prepare a Will?
Anyone can prepare a will. Nevertheless suspicion will be raised if the
person who prepares it is:
A major beneficiary
A close relative of a major beneficiary
A partner of a major beneficiary
There is no rule that prohibits one of the above preparing
the will but suspicions will be raised.
What Mental Capacity Do You Have to Have to Make a Will?
The common law standard was laid down in Banks v Goodfellow
and remains the leading case which is that the testator must:
Understand the nature of his act (sound mind) that is he is
making a will and its effects?
Understand the extent of his property being disposed of
(sound memory) though he/she not need remember every one of his assets
Be able to comprehend and appreciate the claims to which a
person making a will ought to give effect (sound understanding)
What Are the Key Duties of Legal Practitioners?
If a will has been prepared by a solicitor, it creates
additional obligations upon them. The ‘Golden Rule’ was set out in the judgment of Templeman J
in Kenward v. Adams (1975) The Times 29 Nov:
“In the case of an aged testator or a testator who has
suffered a serious illness, there is one golden rule which should always be
observed, however straightforward matters may appear, and however difficult or
tactless it may be to suggest that precautions be taken: the making of a will
by such a testator ought to be witnessed or approved by a medical practitioner
who satisfies himself of the capacity and understanding of the testator, and
records and preserves his examination and finding”.
While the golden rule has been widely approved by the Courts
as having the potential to reduce the risk of a claim of lack of testamentary
capacity (e.g. see Sharp v. Adam), and should therefore be offered to testators
as an additional precaution even if not observed.
The rule is expressed to apply to two categories of
testator, namely those who are ‘aged’ or have suffered a ‘serious illness’, and
therefore the next step is to consider which illnesses are ‘serious’ for this
purpose, and how old ‘aged’ is.
Will GP Evidence Suffice to Prevent a Successful Validity
If it is assessed that medical evidence is appropriate in
the circumstances then the initial point of contact would be someone who knows
the client, most often their GP. However, the suggestion that a GP assessment
will suffice has been met with some criticism. It has been suggested that, in
order for the golden rule to have substance, a specialist should be approached.
On the other hand, the associated cost, delay and
apprehension that can be felt by a client in seeking further specialist advice
can potentially cause an adverse reaction.
What Is the Burden of Proof?
The common law rules regarding burden of proof concerning
testamentary capacity are set out in Key v Key (2010):
While the burden starts with the propounder of a will to
establish capacity, where the will is duly executed and appears rational on its
face then the court will presume capacity
In such a case the evidential burden then shifts to the
objector to raise a real doubt about capacity.
If a real doubt is raised, the evidential burden shifts back
to the propounder to establish capacity nevertheless.
What is Knowledge and Approval?
The testator must know and approve the contents of the will
(this is not applicable to a statutory will).
The legal test is that the testator must know and approve
the contents of the will at the time of execution.
In all cases, however, and irrespective of age, it is
necessary to provide clients with proper advice and to assess whether it is
necessary to obtain medical evidence.
Further, a client should be advised that, in the event of a
subsequent challenge to their will on the basis of lack of capacity, a lack of
contemporaneous medical opinion may make the challenge more likely to succeed.
What is Undue Influence & Persuasion?
The judge Sir James Hannen further defined undue influence
in the context of probate in Wingrove v Wingrove (1885) as being “To be undue
influence in the eye of the law there must be – to sum it up in one word –
The case of Brennan v Prior & Others  EWHC 287(ch)
illustrated that persuasion was due influence in which Ms Brennan challenged
the will alleging undue influence by the siblings. However, dismissing Ms
Brennan's challenge, the judge said that evidence did not support her
accusations of dishonesty; there was nothing irrational about the testator's
bequests, and that while there 'is plenty of evidence that [his sisters] had
the opportunity to influence [the testator] in the making of his will...I find
persuasion but not coercion.'
What Steps Do you Recommend?
Given the complexity of the law check with a lawyer prior
to taking your next steps if you have doubt about the validity of a will.