Preliminary Sections
| Author | Lesley King/Peter Gausden |
| Pages | 1-15 |
Wildy, Simmonds and Hill Publishing
© Lesley King and Peter Gausden, 2019
ISBN: 9780854902743
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The right of Lesley King and Peter Gausden to be identified as the authors of this Work has been asserted by them in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988.
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First edition 2011
This edition published in 2019 by
Wildy, Simmonds & Hill Publishing
Wildy & Sons Ltd
Lincoln’s Inn Archway
Carey Street
London WC2A 2JD
www.wildy.com
Typeset by Heather Jones, North Petherton, Somerset.
Printed in Great Britain by Ashford, Unit 600, Fareham Reach, Fareham Road, Gosport, Hampshire PO13 0FW.
Preface xvii
1 Wills and Other Death Dispositions 1
1.1 Why make a will? 1
1.2 What wills can give away 2
1.3 What wills cannot give away 2
1.3.1 Property belonging to the deceased but
not passing to his personal
representatives 3
1.3.2 Property not belonging to the deceased
but with which he has some sort of a connection 6
1.4 Intestacy 8
2 Restrictions on Testamentary Freedom 9
2.1 Introduction 9
2.2 Inheritance (Provision for Family and Dependants)
Act 1975 9
2.2.1 What the Inheritance (Provision for
Family and Dependants) Act 1975 does 9
2.2.2 Time for making a claim 10
2.2.3 Those who can apply 10
2.2.4 What the applicant must prove 11
2.2.5 What the court takes into account 11
2.2.6 How the court makes its decision 12
2.2.7 What orders the court can make 13
2.2.8 Implications of the Inheritance (Provision
for Family and Dependants) Act 1975 for
the testator and adviser 13
2.3 Mutual wills 14
2.4 Contract to leave property by will 17
2.5 Proprietary estoppel 18
3 Testamentary Capacity and Intention 21
3.1 Introduction 21
3.2 Testator’s age and physical capacity 22
3.3 Testator’s mental capacity 22
3.3.1 Banks v Goodfellow test 22
3.3.2 Mental Capacity Act 2005 24
3.3.3 Burden of proving capacity 26
vi Wills: A Practical Guide
3.3.4 Practical issues 27
3.4 Testator’s intention 27
3.4.1 Need for knowledge and approval of the
will 27
3.4.2 Force and fear 28
3.4.3 Fraud 28
3.4.4 Undue influence 29
3.4.5 Mistake 30
3.4.6 Proving testamentary intention 31
3.5 Practical issues for the practitioner preparing the
will 33
3.5.1 Use of medical expertise and views of the practitioner preparing the will 34
3.5.2 Golden rule 35
3.5.3 Mirror will issues 37
3.5.4 Larke v Nugus letters 37
4 Requirements for Valid Execution 39
4.1 Introduction 39
4.2 A simple recipe for getting it right 39
4.3 Formalities in section 9 of the Wills Act 1837 40
4.3.1 ‘… in writing’ 41
4.3.2 ‘… signed by the testator’ 42
4.3.3 ‘… or [signed] by some other person in
his presence and by his direction’ 43
4.3.4 ‘… testator intended by his signature to
give effect to the will’ 44
4.3.5 ‘… the [testator’s] signature is made or acknowledged by the testator in the
presence of two or more witnesses
present at the same time’ 45
4.3.6 ‘… each witness either – (i) attests and
signs the will; or (ii) acknowledges his
signature in the presence of the testator
(but not necessarily in the presence of any
other witness)’ 46
4.3.7 Capacity of the witnesses 47
4.3.8 Witnesses and section 15 of the Wills Act
1837 47
4.3.9 Attestation clauses 48
4.3.10 Dating the will 49
4.4 Practicalities of execution 50
4.4.1 Supervised execution 50
4.4.2 Unsupervised execution 50
Contents vii
4.5...
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