Page 229 - DMGT515_PERSONAL_FINANCIAL_PLANNING

Personal Financial Planning

Notes 12.7 Will

A will or testament is a legal declaration by which a person, the testator, names one or more
persons to manage his/her estate and provides for the transfer of his/her property at death. For
the devolution of property not disposed of by will, see inheritance and intestacy.
In the strictest sense, a “will” has historically been limited to real property while “testament”
applies only to dispositions of personal property (thus giving rise to the popular title of the
document as “Last Will and Testament”), though this distinction is seldom observed today.
A will may also create a testamentary trust that is effective only after the death of the testator.

Requirements for a Valid Will

For a will to be legally binding a number of requirements must be met. The requirements are
complex and legal advice should always be sought before making a will. The reason for this is
that if the requirements are not met the will is likely to be rendered invalid, which could result
in the deceased’s assets being distributed other than in accordance with his or her wishes.

The requirements of a legally binding will are as follows:
1. Capacity: The testator (the person who made the will) must have been capable of making
a valid will at the time when the will was made.

To be capable of making a valid will the testator must ordinarily be aged 18 years or over,
although there are certain exceptions to this rule.
The testator must also be of sound mind, memory and understanding. Essentially, a person
must know and appreciate what they are doing when they make a will.
If a person lacks the mental capacity to make a will an application to the Court of Protection
can be made under the Mental Capacity Act, 2005. However, the Mental Capacity Act, 2005
will not assist where the will has already been made by a person of unsound mind.
2. Intention: The testator must have clearly intended to dispose of his or her property, in the
manner set out in the will, on his or her death. If the will has been validly executed and the
testator was of sound mind when the will was made such intention will normally be
assumed.
3. Undue Influence, force and fraud: If a testator is unduly influenced (coerced or pressured)
or forced into making the will, a Court may set aside the will in its entirety or in part.
Similarly, a Court may set aside a will or part of a will if the execution of a will was
obtained by fraud or if it was forged after the person’s death.
4. The format of the will: In the majority of cases they will must be in writing for it to be
valid, although there are certain exceptions to this general rule. It must also be signed by
or on behalf of the testator, and the signature must be made or acknowledged in the
presence of 2 witnesses present at the same time.
A will can be written in pencil or ink or can be typed. There is no legal requirement that
a will should be dated, unless the will appoints a guardian of a person under the age of 18,
although it is good practice to do so.
5. Signature: In the majority of cases the will must be signed by the testator, or by some
other person in his or her presence and by his or her direction. Normally the testator will
sign the will at the end of the will, although this has not been a legal requirement since
1982. Where a will consists of several pages, it is not necessary for the testator to sign them
all, so long as all the pages are attached at the time of execution of the will.

224 LOVELY PROFESSIONAL UNIVERSITY