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Wills And Intestate Essay

4349 words - 18 pages

5) A testator must be of sound mind, memory and understanding, appreciate the extent and nature of his property and the moral claims to which he ought to give effect: Banks v Goodfellows. An older person suffering from a mental illness may suggest that the required conditions for his testamentary competence are not present – check all illness
(6) If the will is rational on the face of it then assumption will be made that it is not vitiated by lack of testamentary competence. It would have been better had a doctor witnessed the will, or left a note that he considered the testator to be of sufficient testamentary competence at the time of execution of the will following the case of re ...view middle of the document...

Further, the will must be signed (of the signature must be acknowledged) in the presence of two or more witnesses who are present at the same time , and each witness must either attest and sign the will, or acknowledge his signature in the presence of the testator.
(9) A signature guided by a hand will be sufficient provided the signature is intended to give effect to the will. The fact that the signature is at the top of the page is now immaterial (it used to be the case until 1983 that the signature had to be at the foot or end thereof.
(10) The will, in principle will have to signed by both witnesses who must be competent in appreciating the nature of their act, that of witnessing a signature (rather than witnessing a will) The witnesses must sign in the presence of testator although not necessarily in the presence of each other.
(11) Following the case of Re Gibson pearce J considered that witnessing is exclusively a visual act. Thus a person with impaired vision could hardly be a competent witness. Saying that’s my will might allow for an interpretation that the testator could acknowledge his own signature if this was pointed out to him, in accordance with s9 Wills Act 1837.
(12) It is established that the witnesses need not see the testator sign, nor need he see them sign following the case of Carter v Seaton. The test is whether the person in whose presence the signature is made cold have seen the other signing had he wished to do so Shires v Glascock
(13) So in regards to mental capacity Banks and goodfellows should be applied and consists of three essentials. The testator must be of sound mind, sound memory and sound understanding. As regards to sound mind, it is meant that the mind must be free from disease or defect which would affect the testators ability to maker a will. Person who are under the influence of drugs do not have a sound mind den and vencleve. Physical illness which affects the brain may also affect the soundness of mind batton singh and amirchand
(14) Sound memory means a capability of recollecting the property to be bequeathed, the manner of disturbing it and who it is intended to benefit, not necessarily in detail, but aleast in broad mind outline.
(15) Sound understanding refers to a comprehension of the transaction, an ability to understand the claims of various relatives and the effect of the dispositions to be made. if at any rate it is not for third parties to decide the terms of the will , this must represnt the offspring of the testators own volition and not the record of someone elses as lord penzance said in hall and hall which was a case of undue influence.
(17) ven if the will is read over to the testator it was held in re morris that reading over was only evidence that there may have been knowledge and approval, and much will depend on how the reading over took place . However with a tired sick testatrix this reading over by an interested party who had made a substantial alteration in...

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