Law and Rights
Generally, it is desirable to make a will and to avoid the rules applicable upon intestacy (death without a will). When a will is ?executed? (i.e. made) certain strict formalities apply ? (Wills Act 1837). In addition, at the time of giving instructions for the making of a will, a testator must have ?testamentary capacity?. The basic test for capacity was set out 140 years ago in Banks v Goodfellow (1870) LR 5 QB 549. The testator must understand the nature of the act (i.e. making a will) and its effects. He must also understand the extent of the property and be able to understand and appreciate the claims to which he ought to give consideration.
See Law Society - Wills
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Law and Rights
Making a will? See a competent expert ...
This test, whilst remaining good basic law, has given rise to considerable difficulties. Some of these are discussed by Peter Boynton in the Solicitor?s Journal ? ?The Last Litigation? - 27th September 2010. The article highlights some of the considerable difficulties which have arisen in recent cases :-
In the Estate of Key [2010] EWHC Ch 408
Charles and others v Fraser [2010] EWHC 2154
Perrins v Holland and others [2010] EWCA Civ 840 ? (here, the costs of the case exceeded the value of the estate).
These cases are not necessarily straightforward to understand without a good grasp of ?succession law? but they show that it is essential for those who prepare wills to adhere to the relevant guidance and to be sure that the testator has testamentary capacity. Sometimes, medical opinion may be needed to assist with this ? see BMJ ?How to assess capacity to make a will? This is a difficult area of both law and practice.
Most consumers appear to think that all will writers are solicitors. This is far from the case ? see Law Gazette January 2010. Unfortunately, will writing remains an unregulated activity and this makes it very important to be sure about the qualifications of anyone undertaking this work.
Interestingly, there is no legal requirement to register a will but it should be retained in a safe place. Many testators either leave the will with their solicitor or, often, it is simply kept somewhere at home. However, there is a registration service available ? see here. This could be worth considering since some problems regarding ?lost wills? might be avoided. It is only necessary to register the place where the will is kept.
See Law Society - Wills
See also Fellowship of Will Writers and Probate Practitioners.
- Prenuptial Agreements And Estate Planning Considerations: ?till Death Do Us Part
Nearly 80,000 Florida residents file for divorce each year. And, Florida has the nation?s highest percentage of residents over the age of 65. Many people enter into a second marriage with significant assets and adult...
- A Problem With A Cheap Will ... Beware !
A short post today to highlight a recent case concerning wills - Solicitor's Journal - Where there's a will 29th September In 2007 Ebenezer Aregbesola used Barclays' £90 will-writing service to create a will dealing with his various assets...
- Cut Off Without A Penny ... Not Necessarily !
May your will be "overturned" by the court? The basic principle remains that an individual making a will is free to distribute his property and money in any way he or she desires. It has been possible for certain categories of individuals...
- A Family Inheritance Wasted On Litigation
The recent case of Hawes v Burgess [2013] EWCA Civ 74 illustrates the high financial cost of litigation relating to wills. The Court of Appeal upheld the trial judge's finding that the deceased's last will, in which the testatrix cut out...
- Mental Capacity, "best Interests" And Human Rights
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