Essential Requirements for Making a Valid Will

Hello. Welcome, everybody. My name stuff to my mood Andan pleased to welcome you to this bites I session today through data law. I'm talking today about the various requirements for making a valid will on. But this is one of the bites I sessions where we're looking at this area as of May 2000 and 17. So I'm going to be taking you through the key essentials as faras wheels are concerned on that the slider prepared sets out really the three key elements insofar as this is concerned. So when one is take instructions with a view to putting your well together would have set out here really, after three key essentials that you need to be able to satisfy yourself on that therefore ensure that Turkey will will actually be apart when it comes to the point of which one needs to rely upon it. On that the first requirement, he said that the estate must have the necessary capacity to mental capacity. So I look at this shortly on then one has to satisfy themselves. That estate must have had the requisite intention at the point of which the Wilms made. And this is where one is really ensuring that they had what's called messing knowledge under approval. So we'll talk about it in the final requirement is the formalities for execution must have been complied with less than look at these in turn, so I'll start with the position surrounding testamentary capacity. Now, insofar as this is concerned, First element of this is the age in that intestate er must be generally speaking 18 or over in order to have the will made for them on their for the point at which they signed the will. There are some some exception states. So, for example, if you got a soldier, for example, in natural military service, then Thea, there is a provision for them to make what's called a privilege will, which allows them to make a will from the age of 16 on. In fact, it doesn't even need to be in writing or circumstances. But say, for those exceptional situations, sonic privilege will was there is a requirement for the person to be 18 or over once once they execute the wilts. Now, with the mental capacity side to test for capacity is one where there's been a lot of case law on this over there over several years. On that there was a very old case, for example, a case. Banks and Goodfellow, for example, choose to specify that one needs to be of sound mind memory on understanding on a come back to that shortly. But in so far as the requisite test set out within statute, this is set up within the mental capacity after 2000 and five On. This sets out the fact that the test is us from when the act came into effect in 2007 based upon the Statuary test, which effectively set up within Section one subsection two of the 2005 Act, which provides that the starting point is that one. That starts on the premise that there is a presumption that the person does have capacity, which famous reflects what the common or position used to say and for the purposes off Section two of the Act of Personal Street does not able to make decisions themselves if they are not able to understand of information relevant to the decision. If they're not able to retain that information on, they're not able to use a way that information opus part of the process of making the decision. And finally, they're not able to communicate that decision whether it's through, for example, talking through sign language or through any other means. For example, Subsection Two sets out some of these situations, and that's important to bear in mind that a person is not to be treated as not having capacity. And I have to understand information if they our needs to communicate it through other means. So through simple language or visual aids, for example, the fact that the person makes a decision which the person is making the world may not have agreed with it doesn't mean they lack capacity, of course, because one needs to look at candy, retain information when they weighed up, Can they wait up and come to a decision, not whether to decision down making? It is necessarily seen as one that's reasonable or not in that regard. Now, as I mentioned, there is the case off banks and Goodfellow this the case decided back in 18 17 facts. It's quite an old case, Andi, this talked about this concept of one needs to show that had sound mind memory on understanding what that effectively and tells is this one needs to be satisfied and that the test data understood that the document that is being put together for them is a will and therefore it's going to be disposing of their state upon their deaths. Or do you need to understand that? Secondly, they must understand the extent off there wealth. So they must have an idea where the Delta has, for example, or really a general ideas to the extent of their wealth. And thirdly, they must have an appreciation of the extent and nature of declaims upon them in that regard. So they must know whether they're, for example, living alone with them married, whether in the civil partnership, whether they have Children otherwise. Because clearly, if they cannot understand this information, if they were unable to, because through illness, otherwise, we'll say a disability, then that can have an impact on whether or not the world up to did make his one where they were able to weigh up all the potential more claims upon them in deciding as to who to benefit in those circumstances. Now it's important to ensure that the person is treated as having had domestic capacity at the point of which the will was actually made for them on that. This is therefore the point at which one needs to be satisfied that the person had capacity. There is a presumption of capacity so that it is presumed that the test data has got past year time at which they made will and if it's contested, if one is challenging whether that person had capacity, not then the onus is on the person who's purporting to challenge that, to prove that the person did not have the eso testament to capacity at the point of which they had the will made for them. On that this is where evidence may need to be shown. He showed up. The person did lack records, a capacity at the material time. So the act itself to 2005 after I mentioned, does take the view that person is treated to have capacity unless it's proven otherwise. And, like, say, the onus is on the person who's trying to report in a challenge, that person's capacity to show that that's the case. Sometimes you need to appreciate that people people may not have capacity, say through, say, an illness through trauma through, say, on illness. Like, say, they've got say that I've got dementia, for example, or say they've got got a mental illness, for example, or learning disability, which may lead to them not having testing mental capacity. But sometimes, of course, it's important, very mind that somebody may well have what's called a lucid interval on this is where lucid interval is in is one where the person is not treated as lacking mental capacity at all times, but instead it may be that doing a certain time off the day or asserted stage they do have the requisite capacity in order to make a decision and therefore to have a D capacity to be able to execute the will. And this is where, of course, it would be very, very important to ensure that information is obtained from that person's, say, medical consultant. Whether it's a doctor with its a consultant otherwise confirmed that material time they did have a lease it into, for example, now like a capacity as I mentioned, could be done to an illness down to aid sometimes and therefore it's very important. Range and medical report to be obtained in these circumstances, the fact that somebody has a delusion on different belief in existence of something which has no rational person could believe then that may actually result in the person possibly not having commended capacity. But it is very much a question of fact as to whether that delusion is actually having an impact on their capacity, otherwise, to be able to retain information, to be a two way of information and communicate their decision in that regard. So when there is a question mark as to a client's capacity, what is important is that you need to ensure the lawyer that you take instructions. Andi satisfy soft that the person does have testing mental capacity on If there is doubt as to that is very important for you to arrange for a declaration such as perhaps a medic report from a medical practitioner in charge of that Klein's case to confirm that the point of execution that test date was listed on that they had the record requisite mental capacity at a time. On ideally possible, you should invite Dr the Med medical practitioner to even act as a witness in the seconds times it, if possible, two sources dissatisfied up because, of course, that may well be a challenge later on down the line as to whether or not that person did what did no have capacity? Now the next requirement and for valid will is that which relates to intention. This is where this is first and foremost. What's enormous general intention, which is where the person must have known and appreciated that this document that has been prepared for the midst of will and therefore it's going to be disposing of the estate off after their death, but specifically within that you've got the position surrounding knowledge on approval. Now there are some exceptions to this, and this is in the case off what's called EST astri will, for example, with weight is possible on the Section 16 to 18 off the mental capacity of 2005 service dash. We will prepare for an adult mental patient in certain limited situations, but that aside, certainly it is important and necessary to ensure that the person is having the will made. Fordham has knowledge on approval, and this is where this means that if there are any suspicious circumstances, this made in vendor that we'll avoid on the basis that a person lacked knowledge and approval. Knowledge is they must have understood that this document was a will which was being put together, which was there for the going to be distributing of their state off their death on approval in terms of the must have approved the contents of the world. Now, to put that there was a plump shin, other person has knowledge and approval. The onus again is on the person who's suggesting and challenging this to show off the wife. So again, it would be very much the same as what we've discussed. Insofar as the position with that capacity, there is have a no presumption of religion approval in certain situations where, for example, the test data is blind or illiterate. Order will is signed by somebody other than test data when this on their behalf and therefore in these circumstances, it very important to ensure that the will is actually read over in the presence of test data who indicates their approval to have contents on. That's where when we're getting the attestation clause put, Underworld's very importantly declined his for example, blind or illiterate, that they're testing claret are testing should clauses amended to cater for the fact that he was actually read over to them indoors. Circumstances. Now one of the other things to bear in mind here, which can raise suspicion, is if a gift is being left to, say the person who's actually draft the world. So, for example, if there really is being prepared by a solicitor, for example, we received the benefit of it, then a duty. It's placed upon this lister to notify the client that they should obtain independent legal advice if they decide to leave. Any gift to the list Randy will on this is certainly reinforced by the law society practice, not one of January 2015 available from the law society, which I would certainly urge you to have a look at and be aware off when you do have situations where clients do, you wish to leave a gift to their lawyer indoor circumstances in the will. And if the client is refusing to take independent legal advice than the denial, just advice that yet the lawyer should be looking to refuse to act further in the matter. In those circumstances, now very important to ensure that if there is going to any challenge, Lay tries to whether the person had knowledge and approval that they are careful. Attendance notes captain. Therefore order more important to ensure that does not suck it on relied upon if necessary. Now the third requirement is that which relates the formalities for execution on these must be complied with. These are set out within section line off the Wills Act 18 37 on. In essence, what Section line provides for is this that the will will not be valid unless first off. Almost it's in writing. Otherwise, we said earlier, you do have the exceptions Far's. The position with the privilege will is concerned. Secondly, the will must be signed by the test date or by some other person in their presence on by their direction. Or so the signature is such. It's made under acknowledged by the test data in the presence of two or more witnesses present at the same time on each witness must attest, uh, on signs, the real acknowledges their signature in the presence of test data, but not necessarily in the presence off any other witness. So just looking at some of this you can see that, as they said, the will must be in writing or the lender situation. We discussed the position with privilege wheels. That doesn't have to be any particular material. Dr. Will is actually written on of drawn on in that regard. Now one of the things to bear in mind is that if the will is partially in pencil, for example, and partially in penned and that could cause difficulties and so Fars doubting the authenticity of the will and therefore indoor circumstances, 1 may need to do an affidavit to explain why parts of where was in pencil on the rest in ink, for example. So with these types of situations, it's failing port to ensure that one anticipates problems that may arise later on and therefore deals with them before they do. As I said, Section nine requires the world to be signed by the test data, and they should preferably sign with their usual signature. But sometimes if they are unable to sign, a mark may suffice in those circumstances, and one has to confirm that mark indicates they're effectively their their signature. The intention of the test data may to be established. Final for David, do you execution in these circumstances? And as I mentioned that will must have bean such that it was made. The signature must have bean in the presence of two more witnesses or acknowledged independence of two more witnesses in those circumstances, and that this is where they would then be seeing the test, A to sign he's or his signature or acknowledge he's of her signature in their presence and the witnesses themselves, like they must have placed their signature in the will as to where the signatures placed is really not highly relevant, although in practice you do tend to find it will be a alongside the attestation clause, normally at the end off the world. Now, one of the other provisions on which sets out with really, really fits in with this concept of requirement for valid will is that which relates to the positions running who should be actually witnessing the will. So this is set out within Section 15 of the World's Act of 18 37 on Despised that for beneficiary or he's a her spouse or civil partner was the witness toe will when the witness or specific partner, uh, would not order would never be doing so. Then they cannot take a gift in the will. So putting it another way if, say, Ah, where was drafted by you by, say, a husband, Andi. He was leaving a gift to his wife in the world. And if she was to witness the well done pursuant to section 15 of the world's actor, she would not ordinarily be able to take the will aside the gift under will. So even though the gift would be the world would be valid itself, the particular gift that she was left in the will, she would not be able to benefit from that. The purpose behind this release to avoid the risk of fraud. Indoor circumstances. Andi, therefore very important in these circumstances to ensure that lawyers advise clients about the need to ensure that that they do ensure that other people witnessed well other than any beneficial, responsive apartment. The beneficiary. There is in fact, an exception to this, and this is set out within Section one of the Wheels Act in 1968 which provides that if the gift will in fact remain unaffected if there were at least two other independent witnesses to him. Section 15 is not applicable so effectively. If ST example I gave you the husband was, Teoh asked his wife to witness the world, and she's being left. A gift in the will that was longer there to other witnesses were independent than that Situation D showed a wide scope ignored and she would There will still be able to take the benefit off the gift, and this is a point. This was highlighted in terms of Section 15 in DIF, a important case of laws against corn test. This is a case in 1980 we're by here. It made, if a clear, that a solicitor all their duty off care under tortious law to ensure that beneficiaries to her test eight wish the benefit were in a situation where they were not witness in the world because they would of course, potentially lose their gift under the will. So you can see these are the three requirements which are necessary to ensure that these complete on complied in order to make a will so weaken Sean's father position with the formalities given there is a need to ensure that generally the will needs to be assigned. It's been writing and it needs to be signed under acknowledged by the test state when their presence in the presence of two more witness easy themselves must find out what under what knowledge there is also, of course, the risk off fraud in these circumstances as and indeed there isn't a case off being able to be satisfied that there is knowledge and approval on. Therefore, because of this, you can see it's very important to ensure that order. Next say safeguards are put into place to ensure that the validity of that will is not going to be challenged at a later date. You know, thank you very much. Releasing hope has been a useful session for you. Andare speaking next time. Thank you very much indeed. Bye for now.