Topic

Making a Will

The law governing the making of wills is the The Wills and Administration Proceedings (Northern Ireland) Order 1994 

For a will to be valid, Northern Irish law has two requirements: 

  1. That the testator has the capacity to make the will; and 
  2. That the prescribed formalities must have been complied with.

Looking at each of these in turn then: 

What is capacity?

There are two aspects to this: 

  1. The testator must be over 18 at the date of execution of the Will (unless a privileged will)
  2. The testator must have mental capacity.

 NB A privileged will can be made by anyone serving in the military forces, on active military service, regardless of age. 

The test for capacity was established in the case of Banks v Goodfellow (1870) and requires the testator to have understood three things: 

  1. The nature of what he was going and its effects – i.e. that he was making a Will;
  2. The extent of his property – not in great detail if wealthy but a broad idea of its value.
  3. The claims to which he ought to have regard – i.e. anyone he is supporting, family etc. 

 Additionally, the case stated (and this has been relevant in recent case law on capacity) “That no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties”, that is no insane delusion shall influence the way in which the testator chooses to dispose of their property which, if they had been of sound mind, would not have been made. 

Whilst capacity is generally required at the date of execution, the further case of Parker v Felgate (1883) ruled that it would be sufficient to show:

  1. The testator had capacity when instructing solicitors;
  2. The will was prepared in accordance with those instructions;
  3. At the time of execution, the testator understood he was signing the will he had previously given instructions for – he does not need to understand or remember the instructions given. 

This has been further supported with more recent case law (Perrins v Holland; Key v Key both decided in 2010). 

The person seeking to prove the will (the Propounder) has to prove capacity and in this respect, there are two presumptions which may apply:

  1. Rational Will – presumption of capacity so anyone claiming lack of capacity must produce evidence to rebut the presumption;
  2. Mental illness continues – if the testator generally lacked capacity (i.e. schizophrenic) it is presumed that this continues.  The propounder of the Will must rebut presumption of lack of capacity by proving a lucid interval or recovery. 

Proving capacity can be difficult since the main witness (the testator) is obviously dead!  All solicitors or draftsmen should keep attendance notes from the will drafting, however when dealing with particularly elderly or infirm people, it is also wise to obtain a written medical report and additionally request the medical expert to witness the will. 

Knowledge & Approval

The testator must obviously intend to make a will and in particular intend to make the particular will he executes.  This may seem obvious, but probate fraud and elder abuse is an increasing problem and we have seen cases dealt with by ILM members where the will and the gifts in it have been fraudulently obtained. 

NB The exception to the knowledge and approval rule is when a Statutory Will is prepared.  

In some situations, an individual can lose the capability to make informed decisions for themselves. Whilst some decisions can be made on their behalf through a Lasting Power of Attorney, other decisions such as making a Will, can only be made by the Court of Protection. A will made on behalf of someone by the Court of Protection is known as a ‘Statutory will’

With regards to knowledge and approval the critical time is at the date of execution – the testator must be aware of what he is doing and what exactly he is signing.  However, as with capacity, when someone signs their will there is a general presumption of knowledge and approval unless proved otherwise. 

The exceptions to this presumption are as follows: 

  • The testator is blind or illiterate or the will is signed by someone on his behalf.  This can be resolved by an attestation clause within the Will which states that the Will was read over to the testator and they fully understood the contents or an affidavit sworn after death by the witnesses.
  • Suspicious circumstances – the will substantially benefits the person who prepared it or a close relative of such a person.  In this case, the propounder must remove the “suspicion” for the Will to be proved. 

Formalities

The Wills and Administration Proceedings (Northern Ireland) Order 1994 lays down the requirements for a valid will: 

  1. It must be in writing, signed by the testator or by some other person in his presence and at his direction;
  2. It appears that the testator intended by his signature to give effect to the will;
  3. the signature is made or acknowledged by the testator in the presence of two witnesses present at the same time;
  4. Each witness either attests and signs the will (or acknowledges the signature) in the presence of the testator but not necessarily of any other witness. 

We will look at each of these formalities in turn: 

1. In writing – there are no restrictions on what the will can be written on (one man wrote his will on an egg shell!).

If some of the will is written in pen and some in pencil, the pencil markings will be considered “deliberative” and not admitted for probate unless proof can be shown that they were intended to be final. 

2. Signature – Any mark which the testator uses as his signature is acceptable and whilst a formal signature is obviously preferable, the following have been permitted for probate: 

    • “your loving mother” – In the Estate of Cook (1960) where the will began with her full name.
    • “E Chal” – In the Goods of Chalcraft (1948) where the testatrix who was dying was unable to complete her signature. 

3. Intended to give effect – The signature no longer has to be at the foot of the will however if there is doubt, then the witnesses may be called upon to sign an affidavit of due execution. 

4. Made / acknowledged in the presence of two witnesses present at the same time – the witnesses do not need to know that the testator or indeed they themselves are signing a will – they only need to see the signature being made or acknowledged.  Couser v Couser (1996) allowed for the first witness’s signature to be made prior to that of the second witness but then acknowledged in his presence at the time of the second signature requiring there to be “visual contact between the testator and the witness”. 

The witnesses themselves must be “mentally and physically present”   

No beneficiary or the spouse of a beneficiary under the will can witness it.  A beneficiary should not witness the will since a witness cannot benefit from a will he has witnessed. Note that if a beneficiary witnesses the will or is married to a witness, the gift to him is void. The will is still valid but the witnessing beneficiary does not receive the gift

A blind person cannot witness a will. 

If there is no attestation clause, the Will will not be invalid, however the Registrar will again require an affidavit of due execution.