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Whenever a person dies leaving property, the question will definitely arise as to how his property or estate will be dealt with by those he/she left behind. A person is normally said to have died testate if he left a Will at the time of his/her death and a person is said to have died intestate if such a person died without leaving a Will. When a person dies testate, things are a bit easier since all that his/her Personal Representative (PR) will do is to apply and obtain a grant of Probate which merely validates his Will and allows the Personal Representative/Executors to carry out or effectuate the wishes of the testator e.g. distributing the property according to the wishes of the testator. However, where a person died intestate, his personal representative will apply for Letters of Administration to deal with his estate, which might be a bit complex, hence the imperative to write or make a Will.
Sloppiness in legal drafting or dishonesty on the part of lawyers has sometimes frustrated the wishes of testators and the legitimate expectation of beneficiaries. This is so because if a solicitor either for want of due diligence or inadvertence or dishonesty fails to strictly adhere to the laws relating to Wills or testate succession, the effect could be multi-faceted varying from invalidity of the Will to denying a beneficiary of his entitlements under the Will. Besides, the Law of Intestacy may apply for want of due execution of the Will, which will have the effect of invalidity of an otherwise valid Will. Thus in preparing a Will, solicitors are enjoined to exercise enhanced care and diligence. The ability to draft and analyze the validity and effectiveness of Wills cannot be overemphasized for lawyers. The reasons for the above are not far fetched. Generally speaking, a solicitor is under a duty to ensure that –
- the Will he prepares accurately reflects the client’s instructions,
- the testator has capacity,
- the testator has the necessary intention to make the Will,
- the Will complies with the formalities required by section 9, Wills Act 1837, and
- the Will is prepared with reasonable speed
Any breach of duty in this regard will expose the solicitor to a claim for professional negligence – see the case of Ross v Caunters.
Where a lawyer receives instructions from a third party like the relative of the testator who purports to act for the client, it is suggested that the lawyer should take steps to confirm the instructions with the client preferably in writing. See Richard v Allen.
Note that if the client intends to make a gift inter vivos or by Will to his lawyer, or to the lawyer’s partner or a member of his staff, or to the families of any of them and the gift is substantial, either in itself, or having regard to the size of the client’s estate, or to the reasonable expectations of prospective beneficiaries, the solicitor must insist his client is independently advised as to that gift and if the client declines, the lawyer must refuse to act for him. The testator must have testamentary capacity, i.e. the capacity to make a Will – The testator must not have been under the age of 18 at the date of the execution of the Will (unless he was able to make a "Privileged Will" as a soldier on actual military service or a seaman at seas).
Mental Capacity – The testator must have clearly understood three things on the authority of the case of Banks v Goodfellows (1870). They are:
- the nature of the act and its effect,
- the extent of his property,
- the claims to which he ought to give effect.
Note that the principle is that testamentary capacity must have existed at the date of execution. Nevertheless, it is trite and settled on the authority of the rule in Parker v Felgate that it will be sufficient to show that –
a testator had the requisite capacity at the date he instructed his lawyer to prepare a Will;
the will was prepared in accordance with those instructions; and at the time of execution he was able to understand that he was signing a Will for which he had given instructions and that he believed the Will to be in accordance with those instructions.
Note that inebriety or insanity or insane or irrational delusions do not automatically mean that a testator lacks capacity. Delusions are only material if they affect the disposition of property in the Will. If the testator lacks mental capacity, the Will is void and that will form a strong ground for anyone to challenge the grant of probate or the validity of the Will.
Burden of Proof
(Onus Probandi)
Generally, the propounder of the Will (i.e. the person seeking to prove it) must normally prove the existence of the necessary capacity. Although in practice, once a duly executed Will appears to be rational on its face, capacity is ordinarily presumed. In that case, it will then be up to those opposing the Will to rebut this presumption by proof of incapacity.
It should be noted that if the testator was generally lacking capacity (e.g. a history of mental illness) it is presumed that this condition continued at the time of execution. The propounder then has the burden of proof that the testator executed the Will during a lucid interval. Proof of capacity can be difficult where evidence of capacity is sought sometime after the execution. In the case of an aged testator or one who is or has been seriously ill it is good practice to arrange for a declaration (medical report) from the medical practitioner in charge of the testator’s case that at the time of execution the testator was lucid. Ideally the doctor should act as one of the witnesses though medical staff are usually unwilling to do so. See the case of Kenward v Adams (1975). In my practice, I once had a client whose mother died leaving a Will that seemed to have given everything to one of the brothers. It is a fact that prior to death, the testator had suffered Alzheimer’s disease but the brother was able to get the mother to write a Will. I suspected that the mother may have been coaxed "manipulatively" into making the Will. I intended to institute proceedings challenging the validity of the Will. However, wisdom came to this brother who agreed to divide the property fairly with his other siblings including my client thus obviating the need for any court action.
Knowledge and Approval (Intention)
It is important that the testator must know and approve the contents of his Will. He need not understand its legal effect. See Parker v Felgate. As previously adumbrated, the burden of proof generally lies on the propounder but in practice there is usually a presumption that a testator who had the necessary capacity and who duly executed the Will did so with the necessary knowledge and approval of its contents. It would be up to those opposing the Will to prove the testator lacked knowledge and approval by reason of, inter alia, force, fear, fraud or undue influence or that words were included in the Will by mistake e.g. a typing error.
But note, however, that there is no presumption of knowledge and approval in the following circumstance – where – the testator is blind or illiterate or the Will is signed by someone other than the testator on his behalf. In these cases a presumption can be raised after the Will is read over in the presence of the testator who indicates his approval of the contents. The attestation clause must be adjusted to indicate that this was done. In the absence of a suitable attestation clause, affidavits of knowledge and approval will be required by the Registrar – especially in non-contentious probate where there are suspicious circumstances – These arise where the Will substantially benefits the person who prepared or drafted it (or a close relative of such a person) or someone who took a hand in obtaining its execution. If the Will is to be admitted, the propounder will have to remove the suspicion. Note that any part of the Will of which the testator did not know and approve cannot be admitted to probate.
Generally, the Court has no power/jurisdiction to write the testator’s Will for him. Thus, there is a limited remedy of rectification. However, the Court may only exercise this power if it is satisfied that the Will as drawn fails to carry out the testator’s intention as a result of either a clerical error (e.g. a typing error) or of a failure to understand the testator’s instructions (not where the draftsman has mistaken the legal effect of words used). Under the English rule, the time limit for application for rectification is six months from the date of the grant. Personal representatives who distribute the estate after six months from the date of the grant but before application for rectification are protected from personal liability. Thus executors who delay distribution of the estate either out of greed or for whatever reasons do so against their own risk. Apart from the incidence of implied trusteeship in favour of the beneficiary under the Will, the risk of accounting for the estate is upon them. Executors are thus advised that it is in their own interest to proceed to distribution with expedition once the grant is obtained and not to hold over any asset or property of the estate to which beneficiaries are entitled under the Will. It is good practice to support a Will with an affidavit of the testator. The affidavit must prove that the testator intended to execute the whole Will including that part of it following the signature. The affidavit in support will go to show that the testator made the Will "with intent to give effect to the Will" as his last Will and testament.
Note the vitiating effect of section 15 Wills Act 1837 where a beneficiary, or his or her spouse, witnesses the Will, the gift to the beneficiary fails but the Will remains valid. In essence, under section 15 Wills Act 1837 a gift to a beneficiary fails if the beneficiary or his/her spouse witnesses the Will. The attestation of the Will remains valid; it is the gift which fails. The critical time is the date of the execution of the will, so that if a witness marries one of the beneficiaries after the date the gift is not affected. The gift is saved if (ignoring the attestation by the witness or his or her spouse) there are at least two other non-beneficiary witnesses. Note that there are other factors which may vitiate legacies – e.g. gifts contrary to public policy – e.g. a gift to Al-Quaeda, a gift in promotion of immorality, disclaimer, suspicious circumstances, mistake, want of due execution, etc. The Will must also contain an attestation clause. The attestation clause recites that the Will was executed in accordance with the requirements of section 9 Wills Act 1837 and raises a presumption of due execution. See Sherrington v Sherrington (2005). If the Will contains no suitable attestation clause, the Registrar must require an affidavit of due execution from attesting witnesses, or if none is available, from anyone present at the time of execution.
It is important to point out here that the marriage of the testator automatically revokes his Will. The exception to this is where it appears from the Will that at the time it was made the testator was expecting to be married to a particular person and that he intended that the Will should not be revoked by that marriage. The Will is not revoked by a marriage to that person but marriage to any other person will revoke the Will. Thus a professionally drawn Will should, for the avoidance of doubt, contain an express statement of the testator’s expectation of marriage. It should be drafted in the following terms to avoid ambiguity or uncertainty-… "This Will is made in expectation of my forthcoming marriage to Alicia and I therefore declare that such marriage is not intended by me to revoke any of the terms or disposition in this my Will."
Note further that it is trite and settled beyond any cavil that when a marriage is dissolved, annulled or declared void after the date of the testator’s Will, any appointment of the former spouse as executor and/or trustee and any gift to the former spouse is effectively revoked – though - the Will remains otherwise intact. The revocation only affects gifts to the former spouse. Where the gift to the former spouse fails, it will fall into residue, or, if it is a gift or residue, will pass on intestacy. We conclude this article by once again stating that the importance of Wills in the life of people cannot be overestimated. Death is an inevitable end of earthly life. We are living witnesses to the acrimonious destructions of family units and affectionate relationships at the end of some testators’ life owing to conflicts and disagreements over inheritance – i.e. who gets what. Homes have been broken and scattered, and children and relations have become mortal enemies in their struggle to share the properties of the deceased. That is why it is advised that one considers making a Will to avoid those problems. Apart from the obvious fact that it is preferable and perhaps more assuring for a person to nominate executors who would ensure that his wishes expressed in the Will are carried out. Suffice it to say that it is cheaper to process application for the grant of probate than for the grant of letters of administration which is an inevitable consequence of intestacy.
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