The Requirements for Making a Valid Will - Essay Example

Name Tutor Course Date The Law of Succession Introduction A will refers to a legal document that a person (a testator) writes expressing their will regarding the distribution of their property or estate at the time of their death while naming one or more people (executors) to oversee the estate until its last distribution. They can be oral, holographic, mystic, self-proved, unsolemn or solemn nature, notarial, nuncupative as well as a serviceman’s will. A will has to be written, dated and signed using the handwriting of the testator. Although dates are written anywhere in a will, the signature is at the end of the document. Any changes must also be done entirely in handwriting. Some jurisdictions allow wills expressed as wishes when the testator is on active service. Such cases include soldiers in a battle. Such wills are called serviceman’s wills. This paper analyses the requirements for making a valid will using a case study where John and Karen wish to challenge the recent will made by their deceased mother on the grounds spelt out by common laws. It is an attempt to further expand on circumstances where special considerations can be made when making decisions on the execution of a will. Lack of due Execution The Will Should be in Writing It is a well recognised and appreciated principle that for any will to be valid then the same must be in writing and well executed by the testator. The only exception to this principle is the privileged will that does not need to meet the requirements of being in writing and well executed by the testator (Langbein 489-531). But again, there are no strict requirements that the will should be written in a given format or style or a specific piece of paper. A will does not need to be in a particular way, and in Hodson V Barnes (1926), the court ruled that even if a will is written on an egg shell, it is valid and could, therefore, be admitted to probate (Dutta 547-606). Signature Essential A valid will requires the signing and execution by a testator or by a third party in the presence of a testator and under his direction. The intention of agreeing that it is an act of execution by signing the will must be present, and it must be clearly appearing that by signing the will, his/her intention was to give effect to the validity of the will (Dutta 547-606). Methods of Signature Mark or initials are sufficient if intended to represent a signature to a will even if the testator’s hand is guided in making it, and whether the testator can write or not, and an incomplete signature is sufficient where there is evidence that he intended it to be the best he could do by way of writing his name. A stamped signature may be sufficient, and sealing a will with a seal bearing the testator’s initials has been held sufficient where the testator meant it to represent his signature, although a mere sealing is not. The signature must have been made for the purpose of authenticating the instrument (Sherrin 126-128). Signature in an erroneous or assumed name, if intended as the name of the testator is sufficient, as is a description which sufficiently identifies the testator and is intended to represent his name. Where a testator puts his mark to a will in which he is wrongly named, the execution is valid (Langbein 489-531). Attestation The next requirement for a valid will is that it should be signed or well executed by the testator. At least two component witnesses should be present when the testator is both signing and executing the will. The requirement is so simple and straightforward that the two witnesses must be both present and witness to the signing of the will by the testator. A witness will be said to be competent if they are adults and have no peculiar interest in the will (Dutta 547-606). The term “signature” cannot be given a precise definition. However, courts of law liberally interpreted it to include any distinct mark by the testator that intends to serve as their signature. This may entail initials of their names, thumbprints, a rubber stamp containing the testator’s details as well as assumed names that have been used in the past to validate a will such as signatures (Beyer 4-26). If the executor can adduce evidence to show that the mark or signature that was used by the testator is what he or she uses on normal working occasions, then the same will pass as the valid signature. There is no necessity of a valid will to contain a name. In Re Cook’s Estate, the writer of the will addressed it at the bottom of the document using the words, “your loving mother” and this was enough to serve as a valid signature. In some special circumstances, a part of a signature is enough to make a will valid. In ReChalcraft’s Goods 1948 P. 222, a testatrix decided to put her signature on her will towards her death and was eventually too weak to continue. Initially, her real signature was “E. Chalcraft.” However, the court upheld “E. Chal” as she could not finish, making it the best she could do in her condition (Dutta 547-606). As such, if the two children can challenge the signature, then they need to adduce evidence pointing to the fact that the signature that was made by their mother on her deathbed was not the one she uses; therefore, it was forged. It is noteworthy that a person, however weak, can still make signatures. Lack of Mental Capacity Mental capacity is one of the essential requirements for a valid will. Persons who are of unsound mind or mentally challenged are barred from making wills. They can only do during their lucid moments. There is no direct linkage between the test of mental capacity and mental disorders (Langbein 489-531). Cockburn C.J. set the test for mental capacity in Banks vs. Good fellow in the following terms: “He must…have a sound and disposing mind and memory. In other words, he 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 means to dispose of, and of the persons who are the objects of his bounty and the manner it is to be distributed between them.” The test for mental capacity requires three things of the testator, which are highlighted as follows: First, it must be shown that the testator had a sane mind that will enable him to clearly understand their actions of making and signing a will as well as putting it into effect. A successful challenge to a will can be made if it can be proven that at the time of signing and effecting the will, the testator was unaware of the consequences of their actions. If it can be shown that the person was suffering from some illusions or was drunk or under the influence of drugs, then the will can be challenged and nullified. The next requirement is to have a sound memory, enabling the testator to recognize or remember his or her property that he is supposed to dispose of in the will. If it can be established that, at the moment of making and signing the will, the testator did not indeed understand his part of assets, then the will can be challenged since the testator did not have a mental capacity stable enough to make the will. The third and final test is that the testator should have the ability to remember the persons they are morally required/obligated to provide for in relation to their relationship (Browder 1303-1360). If it can be shown that the testator left out a substantial part of her dependants without any valid reason provided for in the will then the same can be said to be lacking the mental capacity to make the will since one could not remember the persons whom she was supposed to provide for under the will In Harwood vs. Baker, while on his death bed testator executed his will, leaving his entire estate in the hands of the second wife while excluding the other family members. Evidence was adduced to show that at the of making the will, the testator was suffering from a neurological condition that affected his cognitive functions, that rendered him unable to clearly remember all her family members, hence the exclusion of the other family. In common law, the burden/responsibility of giving proof to testamentary capacity is left for the executor. It must, therefore, be understood that it is up to the individual challenging the will to provide substantial proof that the will shows a lack of adequate mental capacity on the part of the testator at the time of signing the will (Dutta 547-606). Lack of Knowledge and Approval Another requirement that validates a will is the proof that the testator had full knowledge and approved the contents of the will. This rule was established in two cases, namely The Estate of Wallace (1952) 2 TLR 925 and in Parker vs. Felgate (1883) 89 PD 171. To presume knowledge and approval of a particular will in the circumstances that the testator has not made the will themselves, it should be established that the advocate drafting the will was under the instructions of the testator who was aware and approved the contents. Secondly, it has to be shown that the will was eventually made or drafted in accordance with the instruction of the testator. It should also be established that clear instructions were issued regarding the execution of a will at the time of execution. This can be proven by either showing that the will was read to the testator by an independent person before the signing of it by the testator (Browder 1303-1360). In the Estate of Wallace (1952) 2 TLR 925, an ill testator made a note with the words “last will.” His solicitor then went ahead to prepare the will in accordance with the note. The testator signed it a day to his death. It was held that he had the knowledge and approval of the will since it had been prepared by the solicitor in accordance with the instructions given (Dutta 547-606). However, it must be understood that in common law, whoever alleges this has to prove, and if necessary, be able to demonstrate the testator’s adequate mental capacity of making the will and the will was well executed and attested to then it is presumed to be a valid will. Whoever is challenging the will has to prove that indeed the testator did not have the knowledge and approval of the content of the will (Sherrin 126-128). The burden of presenting the evidence now shifts to the person attacking the will to provide proof enough to invalidate the presumption. As such, the two children will have to prove that their deceased mother lacked the knowledge and therefore did not approve the content of the will at the time of signing. Undue Influence The general principle is that a will should be made by the testator out of their own volition. The capacity of making a will together with the knowledge and definite approval of the content of a will can be challenged if proof is present showing any form of coercion or forced decision-making at the time of making the will. Coercion is common in instances where the testator was sick or not mentally stable or even threatened into making the will or making specific provision for a certain person or group of persons (Dutta 547-606; Scalise 4-36). But again, a distinction needs to be made between undue influence and persuasion. Persuasion is not unlawful, but if it can be proved that the testator was coerced in a given way to making certain provisions in a will, then the same can be said to be an undue influence (Langbein 489-531). Persuasion is lawful; this is where you beg the person to make provision for you without any threats whatsoever. In Wingrove vs. Wingrove (1885) 11 PD 81, a remark stated “if a young man became caught in the toils of a harlot who was able to exert much influence over him and induced him to make a will in her favour to the exclusion of his wife and children, this would not amount to undue influence.” On page 83 of Wingrove vs. Wingrove (1885) 11 P. D 81, Sir James Hannen elaborated that a person should be as independent as a free agent in the making of a will. He continued to note that, “Persuasion appeals to the affections or ties of kindred, to a sentiment of gratitude for past services or pity for future destitution or the like – these are all legitimate and may fairly be pressed on a testator” (Browder 1303-1360). The Inheritance (Provision for Family and Dependants) Act 1975 and Explanation on the Suitable of these Grounds The Inheritance (Provision for Family and Dependants) Act of 1975 was mainly aimed at making provisions that would empower the courts to make rulings that would facilitate fair handling and execution of a will to spouses, children, grandchildren and other family members who might benefit from the will. A testator is given testamentary freedom, meaning that a person is entitled to dispose of his or her property the way they so wish. However, the same provision has a limitation, in that, a person may not disinherit their dependents to the extent of leaving them destitute (Browder 1303-1360). A person is under an obligation to bequeath his or her dependants enough property with regard to the relationship that they had with the testator together with the property that they may have been given to them inter vivo. If a testator disinherits his or her dependents, then the person has a right to move the court to make a determination for adequate provision from the estate of the deceased (Langbein 489-531). Challenging the will on this ground will not be successful if the deceased woman had made provision for the two children that she was had left behind. It is not a must that she leaves everything to them, so long as she has made sufficient to hem then that alone is enough and she can bequeath the rest of the property the way she wishes (Sherrin 126-128). Conclusion In summation, this essay has provided various grounds on which the will in contention can be successfully challenged. From the information, this particular will has a loophole where the children can challenge their mother’s knowledge and approval of the contents of the will before signing it. Additionally, the ground of coercion or forceful influence should be explored before validation of the will. It is clear that the old woman made the will in her deathbed. Considering these circumstances, there are many questions regarding the validity of the will, even though it does not preclude her capacity to write or authorize it. Works Cited Beyer, Gerry W. Wills, Trusts, and Estates. Wolters Kluwer Law & Business, 2012. Browder, Olin L. "Recent patterns of testate succession in the United States and England." Michigan Law Review 67.7 (1969): 1303-1360. Dutta, Anatol. "Succession and Wills in the Conflict of Laws on the Eve of Europeanisation." Rabels Zeitschrift für ausländisches und internationales Privatrecht/The Rabel Journal of Comparative and International Private Law H. 3 (2009): 547-606. Langbein, John H. "Substantial compliance with the Wills Act." Harvard Law Review (1975): 489-531. Scalise, Ronald J. "Undue Influence and the Law of Wills: A Comparative Analysis." (2008). Sherrin, C. H., et al. "The Law of Wills." (1979): 126-128. Read More