Validity of wills and codicils - Solicitors' duties in will preparation

The answers, solutions, explanations, and written content provided on this page represent PastPaperHero's interpretation of academic material and potential responses to given questions. These are not guaranteed to be the only correct or definitive answers or explanations. Alternative valid responses, interpretations, or approaches may exist. If you believe any content is incorrect, outdated, or could be improved, please get in touch with us and we will review and make necessary amendments if we deem it appropriate. As per our terms and conditions, PastPaperHero shall not be held liable or responsible for any consequences arising from the use of the content on this page. This includes, but is not limited to, incorrect answers in assignments, exams, or any form of testing administered by educational institutions or examination boards, as well as any misunderstandings or misapplications of concepts explained in our written content. Users are responsible for verifying that the methods, procedures, and explanations presented align with those taught in their respective educational settings and with current academic standards. While we strive to provide high-quality, accurate, and up-to-date content, PastPaperHero does not guarantee the completeness or accuracy of our written explanations, nor any specific outcomes in academic understanding or testing, whether formal or informal.

Overview

Understanding the validity of wills and codicils is vital for estate planning and a key focus of the SQE1 FLK2 exam. This article examines the legal requirements for will validity, solicitors' responsibilities in drafting wills, and common pitfalls that can invalidate these documents. Understanding these concepts is essential for aspiring solicitors as they form a core element of probate practice.

Legal Requirements for Valid Wills

Formalities Under the Wills Act 1837

The Wills Act 1837 sets out three essential requirements for a valid will:

  1. Writing: The will must clearly convey the testator's intentions in written form.
  2. Signature: The testator must sign the will in the presence of two witnesses.
  3. Witnesses: Two witnesses must be present during the signing and must attest to it.

These rules, as updated by the Administration of Justice Act 1982, safeguard the testator's intentions and prevent fraud. Missing any of these steps results in an invalid will, highlighting the need for precise compliance by solicitors.

Testamentary Capacity

The test from Banks v Goodfellow (1870) LR 5 QB 549 defines testamentary capacity. This landmark case establishes four crucial elements:

  1. The testator must understand the nature and effects of the will.
  2. They must know the extent of their property.
  3. They must recognize those who have claims on their estate.
  4. They must not suffer from any mental disorder affecting their decision-making.

Solicitors must evaluate testamentary capacity by assessing the testator's mental state. If there are concerns, a medical evaluation may be advisable to confirm the testator’s capacity.

Knowledge and Approval

Even if a testator is capable, the will must reflect their knowledge and consent. The principle from Fulton v Andrew (1875) LR 7 HL 448 acts as a safeguard against fraud or undue influence.

In suspicious cases, such as those involving blind or illiterate testators, additional proof of knowledge and approval may be required.

Undue Influence

Undue influence involves pressuring the testator to create a will that does not reflect their true intentions, and courts have established specific criteria to identify it.

Types of Undue Influence

Undue influence can be:

  • Actual: Direct evidence of coercion or manipulation exists.
  • Presumed: The relationship between the testator and beneficiary raises suspicion and requires defense through evidence of the testator's free will.

Establishing Undue Influence

To determine undue influence, the court will review:

  • The relationship between testator and beneficiary
  • The testator's vulnerability
  • The beneficiary's actions
  • Deviations from the testator's prior wishes

Solicitors' Duties in Will Preparation

Taking Instructions

Solicitors must carefully:

  1. Verify identity and capacity
  2. Take instructions directly from the testator
  3. Document the testator's wishes thoroughly
  4. Assess family circumstances and potential beneficiaries
  5. Advise on tax effects

Drafting and Execution

Drafting requires precision:

  1. Clearly reflect the testator's intentions
  2. Include necessary clauses like appointing executors
  3. Address potential issues such as lapse or abatement
  4. Allow flexibility for changing laws

During execution, solicitors must:

  1. Arrange for proper witnessing
  2. Explain the will's content and impact
  3. Keep detailed records

Duty of Care

Solicitors owe clients:

  • Competence: Adequate skills in will preparation
  • Diligence: Investigate conflicts, assess capacity, and prevent undue influence
  • Transparency: Clear about fees, services, and risks

Common Challenges and Solutions

Testamentary Capacity

When dealing with elderly or frail clients, comprehensive documentation, including medical evidence, is essential.

Undue Influence

Solicitors must remain vigilant to ensure decisions are free from pressure.

Contesting Wills

Solicitors should be ready to defend wills in legal challenges, securing evidence of capacity and intent.

Solutions

  • Meticulous Documentation: Keep detailed records of interactions and decisions.
  • Independent Advice: Encourage seeking additional legal advice for complex estates.
  • Professional Judgment: Apply sound judgment in assessing capacity and mitigating influence.

Emerging Legal Trends in Will Preparation

Digital Wills

Digital wills are becoming common. Solicitors must understand the requirements for digital signatures and authentication.

International Estate Planning

With assets in multiple countries, solicitors must navigate various jurisdictions' laws.

Digital Assets

Solicitors must consider:

  1. Identifying and valuing digital assets
  2. Providing for their transfer or management
  3. Addressing access and privacy issues

Conclusion

Preparing wills and codicils is a complex practice requiring solicitors to understand legal requirements and address challenges. Key principles include:

  1. Compliance with the Wills Act 1837
  2. Using the Banks v Goodfellow test for capacity
  3. Vigilance against undue influence
  4. Thorough documentation and communication with clients
  5. Adapting to trends like digital wills and international planning

By mastering these areas, aspiring solicitors can effectively guide will preparation, honor testators' wishes, and succeed in the SQE1 FLK2 exam.