Will Drafting For a valid will, testator must have capacity, intention and observe the formalities for execution of wills in Wills Act 1837. Wills may be revoked by subsequent marriage civil partnership, by destruction or a later will. Capacity- must be aged 18 or over and have mental capacity. Capacity was defined in Banks v Goodfellow (1870) as 'soundness of mind, memory and understanding'. The understanding of: (a) the nature of his act and its broad effects; (b) the extent of his property (although not necessarily recollecting every individual item); and (c) the moral claims he ought to consider (even if he decides to reject such claims and dispose of his property to other beneficiaries). Proof and presumptions- The person who puts forward a will has to prove that all necessary elements, including mental capacity, are present. If the person showed no general signs of mental confusion, it's presumed capacity existed when will was made. However, if anything puts capacity in doubt, the above presumption will not apply and PRs will have to prove capacity on the basis of the Banks v Goodfellow test above. Intention- testator must both have a general intention to make a will (as opposed to any other sort of document), and a specific intention to make the particular will being executed (ie testator must know and approve its contents). Proof and presumptions- The burden of proving the testator's knowledge and approval falls on the person putting forward the will, but there is one presumption which will usually assist. A testator who has capacity and has then read and executed the will is presumed to have the requisite knowledge and approval. However, this presumption does not apply in: · Testator blind/illiterate/not signing personally · Suspicious circumstances · Force, fear, fraud, undue influence and mistake Formalities for execution- s9 of Wills Act 1837 (substituted by Administration of Justice Act 1982, s17) provides: 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 (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 (d) each witness either- (i) attests and signs the will; or (ii) acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness), but no form of attestation shall be necessary.
Proof and presumptions- If the will includes an attestation clause there is a presumption that s9 formalities were observed. Will need proof that the formalities were not observed. Witnesses- no formal requirements for capacity of witnesses, although, must be capable of understanding significance of being witness to a signature. If witness is a beneficiary or spouse/civil partner of a beneficiary, the will is valid but gift to witness or to witness's spouse fails (Wills Act 1837,