Wills and the presumption against intestacy
Where a will is capable of being construed in two different ways the Court leans towards the view which preserves rather which destroys the will. In other words the court leans towards upholding the intentions in the will where possible rather and striking the will down completely resulting in an intestacy (no will).
What is the the falsa demonstratio principle?
This is a legal Latin term for a legacy which will not fail because of a false description. The Court ignores the inaccurate part of the description of the gift. The falsa demonstratio principle has been extended to the situation where the whole description is wrong. Evidence is allowed in court to show the ambiguity.
More on contemplation of marriage and will disputes
A Will made in contemplation of marriage is not conditional upon the marriage actually taking place. If the will maker dies before the marriage the Will is still fully effective. The will maker may however make the Will conditional upon marriage and in that event would be ineffective.
Wills made in contemplation of marriage
There are two conditions required. One is the contemplation of a particular marriage and not a mere reference to marriage generally. The other is the expression of the contemplation of marriage in the will although not necessarily a reference to a particular person.The necessary contemplation of marriage may also be gained from evidence of intention in statements made by the will maker.
Marriage revokes a will
There are however three exceptions to this otherwise automatic revocation;
1. A disposition to the person to whom the will maker is married.
2. Power of appointment if the appointment would otherwise fail and not pass to the legal personal or representative.
3. Wills made in contemplation of marriage.
Challenging a will and medical evidence
A medical expert cannot give an opinion on testamentary capacity. It is a legal question for a judge to determine.The medical expert is to give evidence of the will makers mental powers which is not alone determinative of testamentary capacity at the time of signing the will.
Challenging a will on lack of capacity
A will maker may lack sound mind, memory and understanding not only by reason of mental illness including insane delusions but also physical illness affecting the brain for example advancing age or abuse of alcohol or drugs. However that condition of a will maker does not necessarily deny testamentary capacity unless it has a direct bearing or effects the disposal of his or her property.
What are the exceptions to witnesses receiving a benefit in a will?
1. If there are two other independent witnesses.
2. The other persons who benefited directly from the will consent in writing.
3. The Court may approve the gift if the will maker freely and involuntary made the disposition and had full knowledge of the facts.
Who should not witness a will?
A gift in favour of an interested witness (attesting witness) is void. The succession Act refers to “beneficial dispositions” and therefore does not apply to trustees, executors or guardians. However a direction to a solicitor executor to charge for services is technically a legacy and not forfeitable by reason of the execution of the will. The purpose of the interested witness rule is to prevent fraud. As usual there are exceptions to this rule including when contesting a will.
Some examples of property not the subject of donatio mortis causa
Merely a promise to pay. A company and building society shares cannot be the subject of donatio, although they probably capably of passing if the donor makes a valid transfer of them to the donee.
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