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Validity of wills — SQE1 Wills question

A worked single-best-answer question on validity of wills, with why each wrong option is wrong — the way SQE1 traps candidates.

Validity of wills

Gloria, aged 88, attended an appointment with a will-writer that was arranged by her nephew, Liam, who sat in on the meeting. Liam typed the final will himself on his laptop. The will leaves Gloria's entire estate to Liam, whereas all her earlier wills divided her estate equally between her six nephews and nieces. Gloria had testamentary capacity and the will was signed and witnessed in accordance with s 9 Wills Act 1837. There is no evidence that Liam threatened or pressured her.

Which of the following best describes the position if one of Gloria's nieces challenges the will?

  1. ABecause the will was prepared by its principal beneficiary, suspicious circumstances arise and the court will require affirmative proof that Gloria knew and approved of its contents.
  2. BUndue influence is presumed because Liam helped Gloria to make the will, so the will fails unless Liam rebuts that presumption.
  3. CThe will is valid, because Gloria had testamentary capacity and the will was executed in accordance with s 9 Wills Act 1837.
  4. DThe gift to Liam is void under s 15 Wills Act 1837, because he was involved in preparing the will.
  5. EThe will is invalid, because a beneficiary is not permitted to attend the meeting at which will instructions are given.
Show answer and reasoning
A is the best answer. Due execution and capacity normally raise a presumption of knowledge and approval, but where the will is prepared by a person who takes a substantial benefit under it, suspicious circumstances arise and the propounder must positively prove that the testator knew and approved of the contents (Barry v Butlin; Wintle v Nye). Undue influence in probate is never presumed; it must be proved by the person alleging it.

Rule: Where a beneficiary prepared or procured the will, suspicious circumstances arise and the person propounding it must affirmatively prove the testator's knowledge and approval of its contents.

  • B In probate there is no presumption of undue influence; the challenger must prove coercion. (wrong rule)
  • C Capacity and due execution do not dispose of the separate requirement of knowledge and approval, which is in issue here. (answers a different question)
  • D Section 15 avoids gifts only to attesting witnesses and their spouses or civil partners, not to people who prepare the will. (wrong rule)
  • E There is no rule that a beneficiary's presence makes a will invalid; it is merely evidence relevant to knowledge and approval. (wrong rule)

Source: Barry v Butlin (1838) 2 Moo PC 480; Wintle v Nye [1959] 1 WLR 284

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