Succession and Wills (property aspects)
Succession and Wills (property aspects)
This domain tests how property passes on death: will formalities, capacity, revocation, intestacy, and the administration of estates.
Will formalities and capacity
- Testamentary capacity requires the testator to understand the nature of the will, the property being disposed of, and the claims of those who might expect to benefit (Banks v Goodfellow).
- Formalities: the will must be in writing, signed by the testator or by someone in their presence and by their direction, and attested by two witnesses present at the same time (Wills Act 1837, s.9).
- Revocation: a later will, marriage (in many jurisdictions), or physical destruction with intent.
- Intestacy: statutory order; spouse/civil partner and issue usually take first, then parents, siblings, etc.
Administration
- Probate confirms the executor’s authority; letters of administration issue where there is no executor.
- The personal representative pays debts and legacies, then distributes the residue.
- Ademption, lapse, and simultaneous death can alter gifts.
Worked example
Testator signs the will in front of two witnesses. One witness signs immediately; the other signs the next day after the testator has left. Is the will valid? Reasoning: s.9 requires both witnesses to attest and sign in the testator’s presence. The second witness did not sign in the testator’s presence, so the will is invalid. A later codicil cannot cure the defect unless it is itself validly executed.
Traps
- Assuming witnesses must sign at the same time; they must both be present when the testator signs or acknowledges, and each must sign in the testator’s presence.
- Forgetting that a beneficiary (or spouse) who witnesses may lose the gift.
- Confusing intestacy with testacy; partial intestacy can occur.
- Overlooking ademption (specific gift no longer owned) and lapse (beneficiary predeceases).