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Secondly, the testator may revoke a will wholly or partially through another will or codicil or by some writing executed like a will.11 The subsequent will must expressly show an intention to revoke the earlier will. As such, it must contain a revocation clause…
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Download file to see previous pages it was held that the test of mental competence is whether the testator had a ‘sound and disposing mind and memory’, that required the testator to have ‘an understanding of the nature of the business in which he is engaged, a recollection of the property he means to dispose of, of the persons who are the objects of his bounty, and the manner in which it is to be distributed between them.’4 Therefore, this includes the testator appreciating all the moral claims upon him, that is, he should be able to recollect all the persons that he is morally bound to provide taking into consideration the testator’s relationship to the person, even if he is not going to benefit them.5 The burden of proof lies with the propounder of the will, which must satisfy the court on the balance of probabilities, that the testator was mentally competent to make the will. However, if the will on the face of it is rational, then a presumption arises that the testator was mentally competent to make the will. In Symes v Green,6it was held that, if the party opposing the will rebuts the said presumption by producing evidence to the contrary, the burden of proof shifts back to the propounder. In light of the above discussions, David has the capacity to make a will, because he was an adult at the time he made all the wills. The issue of the deceased’s soundness of mind can only arise when a beneficiary wishes to challenge the validity of the will. 2. Whether the will was made voluntarily without any duress, undue influence or by mistake. A testator must be conversant and assent the substance of their will. A testator assents to the terms of the will if he executes it in those terms on his own volition and without any coercion or undue influence by a third party.7In order to make a valid...
The later will must also have been validly executed pursuant to the Wills Act. In the Goods of Hodgkinson,12 it was held that originally revoked, say X will remains revoked if the revoking will, Y, is itself revoked by Z. in this case, X cannot be revived. Finally, a will can be revoked, under section 20, by some writing declaring the intention to revoke it. In the Goods of Durance, 13 it was held that it can be a letter signed by the testator and witnessed as required o... ...Download file to see next pagesRead More
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