Formalities of Wills Study Notes

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  • Topic: Death Penalty, Legal burden of proof, Will
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  • Published : May 9, 2013
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Wills
Section 77-Capacity
* 18 or have been married
* of sound disposing mind (Banks v Goodfellow)
* Courts have established principles to determine sound disposing mind. * must prove testator had animus testandi i.e intention to make disposition of property to be effective upon death. * Matter for court to decide whether will of free and capable testator * English position gave significant leeway to testator: Bird v Luckie: Wigram VC, testator is not bound to make will that would deserve approval from the ‘prudent, the wise or the good’, can be capricious and improvident and can conceal circumstances and motives. * Banks v Goodfellow: delusions being pursued by evil spirits did not influence testator’s capacity. * Cockburn CJ: formulated test: Suggested that T ought to be capable of making his will with an understanding of the nature of the business in which he is engaged, a recollection of the property he intends to dispose of, of the people who are to benefit from his bounty and the manner in which it is to be distributed. * Leger v Poirier: Court had to determine at which point old lady’s senility influenced her capacity. * Rand J: A sound disposing mind is one able to comprehend of its own initiative and volition the essential elements of will making, property objects etc. It is not sufficient to merely be able to make rational responses or to repeat a tutored formula of simple terms. * A valid will can be made during a lucid interval: Re Walkers Estate * James Brady Succession Law in Ireland: Crucial point in determining the testator’s capacity is the date of execution of the will, so it follows that a testator who suffers from a mental illness can make a valid will during a lucid interval. * Chambers and Yatman v Queen’s Proctor: Lucid interval of one day, killed himself next day, will held valid. * Presumption in favour of will of deceased and capacity of testator. To rebut presumption clearest and most satisfactory evidence required: Re Glynn * Blackhall v Blackhall: Onus on person claiming will to be valid to prove capacity and vice versa.

Section 78-Formalities
* Must be in writing
* signed by testator or by someone in presence and at direction of testator * at ‘foot or end thereof’
* any substantive provisions that come below signature will be invalid * Re Beadle: Signed at r.h corner on top of will, did not constitute a will as did not meet requirements. * Space can intervene between end of will and signature and signature may be on a separate page at end of will * signature does not have to be legible or complete: In b Kieran * must be a mark added to will with intention to execute it. * Letter X valid signature: Re Glynn

* Initials valid signature: In b Emerson
* Christian name only valid signature: McConville v McCreesh * Stamped name valid signature: Jenkins v Gaisford
* Seal not a valid signature: Wright v Wakeford
* Can be signed by another in presence and at direction of testator * In b McLoughlin: Illiterate testator, someone else signed at his direction using own name, held valid, although according to Hanna J would be subject to close scrutiny. * Fulton v Kee: positive physical contribution on the part of the testator which shows intention to execute will is valid. * Testator signature must be attested by 2 or more witnesses. * Signature must be made or acknowledged in the presence of the witnesses: interpreted as visual presence * must sign will in the presence of the testator:

* mere acknowledgement is not enough: Wyatt v Berry
* Witnesses signatures can be on any part of the will.
* Witness or spouse of witness cannot get gift under section 82 of the Succession Act 1965: Re Bravada (pg 962) if beneficiary signs as an executo etc give is valid...Re Parker * courts interpret this leniently in favour of witnesses where possible * Thorpe v Bestwick: property left to...
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