Validity of wills and codicils - Intention to make a will

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Overview

Testamentary intention is essential for validating wills and codicils, a key area of succession law covered in the SQE1 FLK2 exam. This article examines the legal structure for creating and executing wills, focusing on the testator's intention as central to validity. We discuss statutory requirements, common law principles, and potential issues that legal practitioners may face in ensuring proper estate disposition.

Legal Foundations of Testamentary Intention

Statutory Requirements

The Wills Act 1837, as amended, governs the formal validity of wills in England and Wales. Section 9 outlines essential requirements for a valid will:

  1. The will must be in writing.
  2. It must be signed by the testator, or by someone in their presence at their direction.
  3. The testator's signature must indicate intent to give effect to the will.
  4. The signature must be made or acknowledged in the presence of two or more witnesses present at the same time.
  5. Each witness must attest and sign or acknowledge their signature in the testator's presence.

These requirements demonstrate the testator's genuine intention to create a will and are strictly interpreted to prevent fraud and undue influence.

Common Law Principles

Beyond statutory frameworks, common law provides interpretations of testamentary intention. In Marley v Rawlings [2014] UKSC 2, Lord Neuberger highlighted interpreting the testator's words within their documentary, factual, and commercial context to ascertain true intentions, particularly in ambiguous cases.

Essential Requirements for a Valid Will

To validate a will, the following elements are needed:

  1. Capacity: The testator must understand the nature and effect of the will, aware of the property involved and those benefiting, free from any mental disorder influencing their decisions. Established in Banks v Goodfellow (1870), this capacity requires specific understanding and appreciation.

  2. Knowledge and Approval: The testator must comprehend and approve the will's contents, as emphasized in Parker v Felgate (1883) with needed evidence of understanding the document's implications.

  3. Voluntary Execution: The will must be executed without coercion, reflecting the true wishes of the testator.

Challenges to Testamentary Intention

Undue Influence and Fraud

A will's validity can be contested due to undue influence or fraud, both negating genuine intention. In Edwards v Edwards [2007] WTLR 1387, the court noted that undue influence must equate to coercion, nullifying free agency. Fraud involves deliberate deception and renders a will void from the start, as seen in Re Fuld's Estate (No 3) [1968] P 675. Practitioners must remain aware of such influences.

Lack of Testamentary Capacity

Inability to form the required testamentary intention invalidates a will. Clitheroe v Bond [2021] EWHC 1102 (Ch) reaffirmed assessing capacity during execution, stressing the need for awareness of potential incapacity.

Practical Tips: Drafting Wills for Validity

  1. Clear Language: Use precise terms to avoid disputes over intentions.
  2. Specific Bequests: Clearly define inheritances for beneficiaries.
  3. Provisions for Conditions: Clearly state any conditions on inheritances.
  4. Account for Future Events: Incorporate clauses addressing potential changes like marriage or childbirth.
  5. Regular Review: Update the will following significant life changes to ensure it aligns with current wishes.

Key Drafting Recommendations

  1. Attestation: Ensure proper attestation by at least two witnesses.
  2. Witnessing: Both testator and witnesses must be present for signatures.
  3. Capacity Statements: Include declarations of capacity, particularly if health issues are present.
  4. Professional Advice: Engage a solicitor with knowledge in wills to ensure validity and intention alignment.

Example Scenario: Testamentary Intention

Consider Dr. Elena Rossi, a neuroscientist with early-onset Alzheimer's. She creates a will funding Alzheimer's research during a lucid period. Later, in advanced disease stages, she attempts a new will favoring her caregiver. This scenario raises critical questions:

  1. Does the initial will validly express her intentions, given her foresight?
  2. Can the later will be valid, considering her diminished capacity?
  3. How might the court evaluate intention given her condition's progression?

This scenario illustrates the complexity of ensuring genuine intention amid capacity concerns and potential influence.

Case Study: Intention in Conditional Bequests

In Re Coxen [1948] Ch 747, the court examined conditional bequests to determine intent. A property was left to the testator's wife "as long as she remains my widow." Deciding if this was a limitation or a condition reflected the testator's aim, showcasing the need for precise drafting.

Practical Considerations

  1. Draft conditional clauses clearly.
  2. Anticipate interpretive challenges.
  3. Consider implications on estate management.

Conclusion

Articulating intention in a will is essential to preserving its validity and reflecting the testator's true wishes. Both individuals and legal practitioners must focus on clear documentation to maintain the will's integrity. For students preparing for the FLK2 exam, studying detailed legal references and case studies can improve understanding of these aspects of estate planning.