1. Mental Capacity: Common Law: Banks v Goodfellow (1870) LR 5 QB 549, Will of Wilson (1897) 23 VLR 197.
1.1. Be of sound mind, memory and understanding
1.1.1. Derived from common law: judgemetn of the court(Cockburn CJ, BLackburn, Mellor, and Hannen JJ) Delivered by Sir Alexandra Cockburn in: Banks v Goofellow (1870) LR 5 QB 549, 565
1.1.2. Testator must
1.1.2.1. Under the nature of the act making a will and what its effect is.
1.1.2.1.1. Ask open ended questions
1.1.2.2. Understand the extent of the property the subject of the will
1.1.2.2.1. Keep a record of facts, that is what was asked the the responses.
1.1.2.2.2. notes should indicate what assest the client holds and estimation of value.
1.1.2.2.3. testator does not require to have precise understanding of all details of all assests. See Kerr v Badram; Estate Badram [2004] NSWSC 735.
1.1.2.3. Be able to make a reasoned judgent as to the moral claims of potiential beneficiaries.
1.1.2.3.1. See Petrovski v Nasvev; The Estate of Janakievska [2011] NSWSC 1275
1.1.2.3.2. capacity will be assessed with regard to the will in question
1.1.2.3.3. the fact a will is contorversial or that the testator chose not to exercise the ability they had to make a sound judgement does not make the will invalid. (detail evidence will be required to show the testator had capacity.
1.1.2.3.4. be switched on to where spouses and children are included/ excluded.
1.1.2.3.5. the testators mental capacity is not constutied medical.
1.1.2.4. No be affected by delusions that influence the disposal of their assets
1.1.2.4.1. See: DuMaurier v Wechsler [2001] NSWSC 4: mistaken belief does not amount to delusions.
1.1.2.4.2. re Griffith; Easter v Griffith (unreported, NSWCa, 7 June 1995), cited with approval Perpetual Trustee Co Ltd v BAker [1999] NSWCA 224: physicatric knowledge. What can consistute as insanity, what constitutes as delusions, where alleged delusions concern a fact.
1.1.2.4.3. See focus case: Carr v Homersham [2018] NSWCA 65: TESTOMENY CAPACITY CASE.
1.2. Know and approve of the contents of their will
1.2.1. One requirement for a valid will is that the testator must have knowledge of and approve the contents of the will.
1.2.2. See Blendell v Byrne & Ors; The Estate of Noeline Joane Blendell [2019] NSWSC 583: relationship between testamony capacity and knowlegde and approval.
1.2.3. See Robinson v Spratt [2002] NSWSC 426: relation to the practice of reading a Will aloud to the testator.
1.2.4. When there is suspicious circumstances, the onus swtiches to the person proponding the will to establish actual knowledge and approval.
1.2.4.1. See Nock v Austin [1918[ 25 CLR 519: Case where on solicitor advised another of the contents of a will not the testator.
1.3. Intend the document to contitute their will
1.3.1. See:Estate of Slavinskyj (1988) 53 SASR 221: any substance where writing can be seen : Wall = been found to constitute a will.
1.3.2. See cases Cassie v Koumans; Estate Cassie [2007] NSWSC 481 (video recordings), Will of Trethewey (2002) 4 VR 406 (file located on computer), Re Yu [2013] QSC 243 (will writeen on an iphone), Estate Demetrios Katsikas, Deceased [2018] NSWSC 555 (emails), Re Nichol v Nichol & Akor [2017] QSC 2220 (an unsent text message)
1.4. Not be acting under the influence of another
1.4.1. Wingrove v Wingrove (1886) 11 PD 81: Actual and effective coercion must be proved to show vitiated knowledge and approval.
1.4.2. inter vivos transactions ( equity for transactions made during a persons lifetime) rebuttabled presumptions of undue influence where the parties are in a relationship of confidence. (however does not exist in relation to the law of wills.
1.4.3. testator must not be subject to coecion which overpowers the will of the testator.
1.4.4. Hall v Hall (1861) LR 1 P & D 481: Ceorcion must be distinguished from persuasion
1.4.5. Boyse v Rossborough [1857] 6 HLC 1: Undue influence must be pleaded in detail and supported by full particulars ( Onus of proos is on the person allegin undue influence).
1.4.6. Trustee for the Salvation Army (NSW) Property Trust v Backer [2007] NSWCA 136: difficulties and risk involved in challenging the validity of a vill on the grounds of undue influence (frail and elderly testators at risk of coercion)
1.4.6.1. See also for victoria cases Nicholson v Knaggs [2209[ VSC 64 and the over ridding case Brown v Guss [2014] VSC 251 standard of proof on the balance of possibilities.
1.5. Not be acting as a result of fraud
1.5.1. Seee Skinner v Frappell [2008] NSWCA 296, 79) "Fraud misleads a testator whereas undue influence coerces him"
1.5.2. The Salvation Army (NSW) Property Trust & Anor v Becker & ANor [2007] NSWCA 136: probate undue influence and fruad ( fundamentally different concepts)
1.5.3. Fraud could be decieving a testator as to a beneficiary's true identity or relationship to the testator, deception about another;s conduct or forgery.
1.5.4. the propounder of a will has due exedcution by a competent testator the onus of proving fraud rest on thoes who allege it.
2. Characteristics
2.1. Declaration of the intention only: Meaning the testator is free to dispose of property during the lifetime.
2.1.1. central element of a will
2.1.2. testator is free to make inter vivos transactions
2.2. Revocable: A will can alway be revoked, even if it contains a declaration stating it cannot be. (Vynior's case (1609) 8 Co Rep 81b; 77 ER 597)
2.2.1. A will can be revoked at any time during the testators life, even when entered into a contract that a will cannot be revoked revocable can happen.
2.3. Ambulatory: A will can only take effect on the death of the testator. The will sometimes will not contain all assests aquired at the time of death.
2.3.1. See Cock v Cooke (1866) LR 1 PD 241: take effect at the death of the testator
2.3.2. Robertson v Smith (1870) LR 2 PD 43: intention of the person executing the documents...
2.3.3. King;s Prctor v Daines (1830) 3 HAgg Ecc 218: onus of proving that a document is a will...
2.4. Unitary: There may only be one will but there may also be several codicals or different testamentory documents disposing of different assests but all the unrevoked testamentary documents together constitute the will of the testator.
2.4.1. See Douglas-Menzies v Umphelby [1908] 2 AC 224: words of the privy council
2.5. Not limited to property: A will is still effective if no property at all is dealt with,
2.5.1. may simply appoint executors, appoint guardians of infants, appoint trustee's , confere special powers ect.
3. Distinguishing factors
3.1. Settlements inter vivos
3.1.1. Russel v Scott (1936) 55 CLR 440: "Succession post mortem is not the same as testamentary succession ..."
3.2. Life insurance policies: Nominations
3.2.1. They are not testamentary, however they are contractual, if there is a nomination then the proceeds are not classed as property however when there is non then it is classed as property,
3.3. Pensions and superannuation nominations
3.3.1. General
3.3.1.1. these are statutory and governed by the Superannuation Industry (Supervision) Act 1993 (Cth). Some do not have nominational options, and obligationory factors can be not always present
3.3.2. Binding nominations
3.3.2.1. See: Superannuation Industry (Supervision) Act 1993 (Cth). Binding nominations are posiible within them however much depends on the rules and can be varied and revoked at any time. it is a contractual right.
3.3.2.2. See: Baird v Braid {1990} 2 WLR 412: 'such nomination did not ammount to a disposition of property....'
3.3.2.3. Also refer to Re Danish Bakes Co Ltd STaff Pension fund Trust [1971] 1 WLR 248
3.3.2.4. See: McFadden v Public Trust for Victoria [1981] 1 NSWLR 15: the passing of funds from trust account did not pass through will instead went directly from fund to nominee.
3.3.3. Joint tenancies
3.3.3.1. is not testamentary in nature, means no real succession as property was jointly owned, anything owned in joint tenacy within a private will is non effective.
3.3.4. Joint banking accounts
3.3.4.1. See Russel v Scott (1936) 55 CLR 440: the general opening of a joint bank account is not testamentary act: residuary estate.
3.3.5. Donatio mortis causa
3.3.5.1. meaning a gift in contemplation of death
3.3.5.2. is inbetween inter vivos and testamentary legacy. Does not have to be executed in accordance with teh manner prescribed for wills.
3.3.5.3. To be valid must not form part of the estate, however is passed to the donee.
3.3.5.4. See Hedges v Hedges (1708) Pree CL 269
3.3.5.5. Three essential requisites:
3.3.5.5.1. 1) the gift must be made in contemplation of the donors death
3.3.5.5.2. 2) the gift must be conditional upon the death of the donor
3.3.5.5.3. 3 the donor must part with dominion ove rthe subject matter of the gift
3.3.5.5.4. See: Duffucy v Mollica [1968] NSWR 751, Public Trustee v Bussell (1993) 30 NSWLR 111
4. Formal requirements: Succession Act 2006 (NSW) s 6.
4.1. Execution: Succession Act 2006 (NSW) ss 6(1)-(2)
4.1.1. How should the will be executed: (1) A will is not valid unless
4.1.1.1. (a) its is in writing and signed by the testator and signed by the testator or by some other person in the presence of and at the direction of the testator
4.1.1.2. (b) the signature is made or acknowledged by the testator in the presence of 2 or more witnesses at the same time
4.1.1.3. (c) at least 2 of those witness ateest and sign the will in the presence of the testator ( but not necessarily in the presence of each other).
4.1.2. (2) The signature of the testator or of the other person signing in the presence and at the direction of the testator must be made with the intention of executing the willm but it is not essential that the signature be at the foot of the will.
4.2. Will must be in writing
4.2.1. See Intrepretation Act 1987 (NSW) s21(1): "...includes printing, protograghy, photocopying, lithograph, typewriting and other mode of representing or reproducing words in visable form.
4.2.2. Can be partially typed and partially written by hand ( including pencil * note only if the signature is in pencil or if only changes are made in pencil there is an interence that the testator is merely considering changes)
4.2.3. When partially written in ink and partially written in handwriting: rebuttal presumption that the testator intended the ink wirting to supersede the pencil. See: The Goods of Adams (1872) 2 P & D 367
4.2.4. Estate of Slavinskyj (1988) 53 SASR 221: any substance where writing can be seen : Wall = been found to constitute a will.
4.3. Will validation: Signing
4.3.1. Is either signed by the testator or by someone on their behalf altough in the presence of the testator
4.3.2. Testator must be present a signing
4.3.3. Case: Estate of Cook; Morrison v Cook 1 All ER 689 (signatures can come in multiple forms)
4.3.4. Case Re Colling: Lawson v Von Winckler [1972] 1 WLR 1440 (the partial signature isn't sufficient as the testator could not complete the what they intended ..)
4.3.5. The signature is not required on every page.
4.4. Will witnessing: How and who
4.4.1. The witnesses must sign after the testator
4.4.2. Witnesses must either see the signature (alknowledged by the testator) or be present when the testator signs the will.
4.4.3. There must be atleast 2 witnesses signatures on the will. This can be individually done or together but each signature must be in the presence of the testator.
4.4.4. Witnesses do not need to know that the documeny is a will ( Succession Act 2006 (NSW) s 7).
4.4.5. Mistakes aka initials, descriptive words and wrong names have stillws been held as a valid witness.
4.4.6. Theres is no particular placement for the signatures.
4.4.6.1. Although if the signature is not near the testators it is presummed that the witness may not have sighted the testators signature.
4.4.7. Where a will bears the testators signatures and witnesses signatures there is a presumption of due execution
4.4.8. In Australia: They must be atleast 18 years of age
4.4.8.1. Unless Married: Succession Act (NSW) s 5(2) other states also included in this see textbook for those references.
4.4.8.2. Leave to make to will for under 18's must be granted by court: Succession Act 2006 (NSW) s 16
4.5. Attestation clause
4.5.1. Succession Act 2006 (NSW) s 6(3): assestation clause is not required in a will
4.5.2. Is a clause comfirming the requirements of s 6 (1) have been met.
4.5.3. Not having one makes grant of probate harder
4.5.3.1. this mean a person filing for Grant of Probate must file an affidavit by one or more of the attesting witness to the due execution of the will
4.5.3.2. See Supreme Court Rules 1970 (NSW) pt 78 r 26
4.5.4. Socilitors obiligations:
4.5.4.1. May act for clients who are blind or who cannot read due to iliteracy or may not speak English or who can speak English but not read it
4.5.4.2. they should prepare statutory declarations of the witnesses to setting out details of the way the will was read or translated. What they testator said inlcuding evidence to show that the testator knew and approved of the contents of the will.
4.5.4.3. See Supreme Court Rules 1970 (NSW) pt 78 r 27
4.6. Practition Focus
4.6.1. " [Name] has read and approved his/her will and now wished to sign it on our presence as witnesses"
4.6.2. The testator should then sign the will and the attestation clause (if included) with names and address
4.6.3. Try and print names where possible. (In the application for probate of a WIll the executors's affidavit requires the names of the witnesses. Signatures can be hard to decipher. Addresses help an executor trace a witness, a professional address will suffice.
4.6.4. Refer to Succession Act 2006 (NSW) s 9 : who cannot be a witness.
4.6.5. Refer to Succession Act 2006 (NSW) s 10(2) gift to a beneficiary is void if the beneficiary is a witness to the will ' interested witness'
4.6.5.1. also see s 10(3) the clauses that make the beneciary still able to be a interested witness.