1. Introduction
A will is effective only if the law recognises it as valid. The law sets four distinct hurdles, and a document that fails any one of them is not a will. If all four hurdles are cleared the document is a valid will; if any one of them fails the document is of no effect, and — unless the testator has left an earlier will that survives — they die intestate.
(i) The testator must have testamentary capacity.
(ii) The testator must know and approve the contents of the will.
(iii) The document must be executed in the manner required by section 9 of the Wills Act 1837.
(iv) The will must not have been procured by undue influence, fraud or forgery.
Each of the four hurdles is a separate question of fact. Capacity is tested at the moment the will is executed (with a limited exception in Parker v Felgate). Knowledge and approval must exist at the same moment but is normally presumed when capacity and due execution are established. The section 9 formalities must be satisfied on the face of the document, again at the moment of execution. Undue influence is an affirmative allegation raised by the person challenging the will and must be proved on the balance of probabilities — there is no presumption.
Validity is not, however, the end of the story. Even a will that was valid when executed may cease to have any operative effect if it has been revoked — by a later will, by destruction with the intention to revoke, or automatically by the testator's subsequent marriage or civil partnership. Conversely, divorce does not revoke the will as a whole, but it does have a dramatic effect on any gift to (or appointment of) the former spouse. Finally, alterations made after execution are subject to a rule of their own in section 21 of the Wills Act 1837.
2. Testamentary Capacity
Testamentary capacity is the mental ability required to make a valid will. The test is set out in Banks v Goodfellow (1870) LR 5 QB 549, a decision of the Court of Queen's Bench that is more than 150 years old but is still the governing authority today.
Parliament has legislated on mental capacity since (Mental Capacity Act 2005) but the specialised common law test in Banks v Goodfellow continues to apply in the will-making context: see Walker v Badmin [2014] EWHC 71 (Ch), confirmed in Clitheroe v Bond [2021] EWHC 1102 (Ch). You should therefore apply the common law test, not the MCA 2005 definition.
The four limbs are cumulative: the testator must satisfy all four at the moment of execution. A person can suffer from a mental disorder and still have testamentary capacity, provided that on the specific question of making a will they understand the four matters set out above. Conversely, a person with no diagnosed disorder can lack testamentary capacity if they are acting under an insane delusion — a belief that no reasonable person could hold on the evidence available — and that delusion has influenced the disposition.
2.2.1 The Relevant Moment and Parker v Felgate
Capacity is tested at the moment the will is executed. A testator who had capacity at the moment of execution will have made a valid will even if they lost capacity the next day; a testator who lacked capacity at the moment of execution will not have made a valid will even if they had capacity the day before and the day after. The rule is strict.
There is one narrow exception. In Parker v Felgate (1883) 8 PD 171 the testatrix gave instructions for a will when she had capacity, but by the time the will was brought back to her for execution she had lapsed into a coma-like state and could do little more than nod when asked whether she approved the document. The court held the will valid.
2.2.2 The Golden Rule and the Solicitor's Duty
Where there is any doubt about the capacity of an elderly or seriously ill client, the solicitor drafting the will should follow the so-called golden rule set out by Templeman J in Kenward v Adams (1975), and approved in Key v Key [2010] EWHC 408 (Ch): the solicitor should arrange for the will to be witnessed or approved by a medical practitioner who has satisfied themselves as to the client's capacity and made a contemporaneous written record of that assessment.
3. Knowledge and Approval
In addition to having capacity, the testator must know and approve of the contents of the will. 'Knowledge and approval' is shorthand for the requirement that the testator has read or had read to them the terms of the document and has consciously understood and accepted them as their own testamentary intentions.
As a general rule, proof that the testator had capacity and duly executed a will raises a rebuttable presumption that they knew and approved of its contents. The propounder of the will does not, in the ordinary case, have to adduce affirmative evidence of knowledge and approval.
(i) cases involving a blind, illiterate or otherwise disabled testator who could not read the will; and
(ii) cases in which the circumstances surrounding execution are 'suspicious' in the sense explained in Wintle v Nye [1959] 1 WLR 284.
2.3.1 Suspicious Circumstances — Wintle v Nye
The classic suspicious-circumstances case is where the person who drafted or procured the will (or a close relative of that person) takes a substantial benefit under it. In Wintle v Nye Viscount Simonds explained that the greater the benefit and the closer the drafter's involvement, the stronger the suspicion and the heavier the evidential burden on the propounder to 'excite the conscience of the court' that the testator truly knew and approved the gift.
Gill v Woodall [2010] EWCA Civ 1430 consolidated the modern approach. Lord Neuberger MR held that the court should decide knowledge and approval by looking at the whole picture and asking whether, on balance, the testator understood and approved the content of the will. A solicitor who has taken instructions face to face, read the will back to the testator, and obtained a signed attestation that records those steps will almost always be able to establish knowledge and approval, even where other features of the transaction look odd.
2.3.2 Mistake and Rectification
Where part of a will does not reflect the testator's true intentions because of a clerical error or a misunderstanding of the testator's instructions on the part of the drafter, the court has a statutory power to rectify the will under section 20 of the Administration of Justice Act 1982. Application must be made within six months of the grant of representation (s.20(2)) except with the leave of the court.
4. Undue Influence, Fraud and Forgery
Even where capacity, knowledge and approval are present, a will may still be refused probate if it was procured by undue influence, fraud or forgery. These are three separate grounds of challenge with very different practical thresholds.
2.4.1 Undue Influence
Testamentary undue influence is narrower than its counterpart in the law of equity. In a lifetime-gift case the claimant may be able to rely on a presumption of undue influence drawn from a relationship of trust and confidence; no such presumption exists in the will context. The challenger must prove affirmatively that the testator was coerced — that their mind was 'subdued' so that they executed a will they did not really wish to make.
2.4.2 Fraud and Forgery
Fraud is a challenge on the basis that the testator was induced to execute the will by a material false representation — for example that a named beneficiary was dead, or had committed some disqualifying act. Forgery is the allegation that the signature or other material part of the document is not the work of the testator at all.
5. Formal Requirements — Section 9 Wills Act 1837
Section 9 of the Wills Act 1837 (as amended by s.17 AJA 1982) lays down four formal requirements that must be satisfied for a will to be validly executed. These requirements are strictly applied: a will that fails any of them is invalid, no matter how clearly it reflects the testator's intentions.
2.5.1 Writing
The will must be in writing. Writing includes any form of visible representation of words — typed, handwritten, printed, or a mixture — and can be on any surface capable of holding a permanent mark. A video recording, an audio recording and an unsigned electronic file are not 'writing'.
2.5.2 Signature
The will must be signed by the testator, or by someone else in the testator's presence and by their direction. A signature need not be the testator's full name; a mark (including an X), a thumbprint, initials, or even a partial signature will suffice provided it is made with the intention of authenticating the document. Where the testator is physically unable to sign — for example because of paralysis — another person may sign for them in their presence and at their direction; the attestation clause should record that fact.
The signature must also 'appear that the testator intended by his signature to give effect to the will' (s.9(b)). Before the 1982 amendments the signature had to be at the foot or end of the will; today the signature may appear anywhere on the document provided the testator intended it to authenticate and give effect to the will. Wood v Smith [1993] Ch 90 is the leading authority: a signature at the top of the document was held sufficient because, on the evidence, the testator intended it to give effect to the will.
2.5.3 Presence of Two Witnesses
The testator must sign, or acknowledge an existing signature, in the simultaneous presence of two or more witnesses. Three points matter.
First — both witnesses must be present at the same time. If the testator signs in the presence of witness A and then separately signs (or acknowledges the signature) in the presence of witness B, the will is not validly executed.
Second — 'acknowledgement' means that the testator draws the witnesses' attention to an existing signature and makes clear that it is their signature; the witnesses do not need to see the signature itself, but they must know that the document has been signed.
Third — 'presence' means line-of-sight presence: each witness must be in a position to see the testator sign or acknowledge the signature if they chose to look. Mental awareness alone is not enough.
2.5.4 Attestation by the Witnesses
Each witness must then either sign the will (attest it) or acknowledge their existing signature, in the presence of the testator. The witnesses do not need to sign in the presence of each other — only in the presence of the testator. In practice, however, all three people sign together in a single sitting, and a standard attestation clause records that fact.
2.5.5 The Witness-Beneficiary Rule — Section 15
Section 15 of the Wills Act 1837 provides that a gift under a will fails if the beneficiary, or the spouse or civil partner of the beneficiary at the date the will is executed, is one of the two attesting witnesses.
First — it does not invalidate the will; it only strikes down the gift to the witness (or witness's spouse). The rest of the will takes effect as written.
Second — it applies only to the two witnesses whose attestation is needed to make the will valid; if a third person signs as a witness as a matter of courtesy, any gift to them takes effect because their attestation is 'superfluous' (s.1 Wills Act 1968).
Third — the marital/civil-partnership relationship must exist at the date of execution, not at the date of death: a later marriage does not disqualify a gift, and a later divorce does not save one.
A gift that fails under s.15 either falls into residue (if it is a specific or pecuniary legacy) or, if the failed gift is itself the residue, the residue passes on partial intestacy to whoever is entitled under s.46 AEA 1925 (see Chapter 5).
| Question | Position under s.15 WA 1837 |
|---|---|
| Effect on the will | Will remains valid — only the gift fails |
| Effect on the gift | Gift to the witness-beneficiary (or their spouse/CP) is void |
| Whose spouse/CP is caught? | Spouse or civil partner at the date of execution |
| Third (superfluous) witness | Gift saved if the will is valid without that attestation — s.1 Wills Act 1968 |
| Later marriage / later divorce | Irrelevant — relationship tested at execution, not at death |
| Where does the failed gift go? | Into residue; or, if it is the residue, on partial intestacy (s.46 AEA 1925) |
6. Privileged Wills
Section 11 of the Wills Act 1837 (supplemented by the Wills (Soldiers and Sailors) Act 1918) creates a narrow exception to the s.9 formalities.
Privileged wills are rare in FLK2 scenarios but occasionally surface — for example in a scenario involving a serving soldier overseas.
7. Revocation
A will is, by its nature, ambulatory: it has no legal effect until the death of the testator, and at any time before death the testator can revoke it.
(i) by a later will or codicil that expressly or by necessary implication revokes the earlier will;
(ii) by destruction of the will with the intention to revoke it;
(iii) automatically by operation of law on the testator's marriage or civil partnership; and
(iv) (as to gifts to the former spouse/civil partner only) by divorce or dissolution.
The first three revoke the will as a whole; the fourth is a partial revocation confined to gifts and appointments in favour of the former spouse.
2.7.1 Revocation by Later Will or Codicil
A later validly executed will or codicil may expressly revoke the earlier will (usually through a clause reciting 'I revoke all former wills and testamentary dispositions made by me'), or may revoke it by necessary implication where its terms are wholly inconsistent with the earlier will. Where the later document is only partly inconsistent, both documents stand together and the later takes effect to the extent of the inconsistency: Lemage v Goodban (1865) LR 1 P&D 57.
2.7.2 Revocation by Destruction — Section 20
Section 20 of the Wills Act 1837 provides that a will is revoked by burning, tearing or otherwise destroying it, by the testator or by some person in their presence and by their direction, with the intention of revoking it. Both elements must be present: destruction and the intention to revoke (animus revocandi).
Where the testator destroys the will but the destruction is conditional on some other event taking effect (for example, on a new will being valid), the doctrine of dependent relative revocation may save the original will if the contemplated event does not occur.
2.7.3 Revocation by Marriage or Civil Partnership
Section 18 of the Wills Act 1837 provides that a will is automatically revoked by the testator's subsequent marriage. Section 18B makes the equivalent provision for civil partnerships. This is a rule of public policy: the law assumes that a person who marries or enters a civil partnership would wish their new spouse or partner to inherit, and so starts the testamentary slate clean.
2.7.4 Effect of Divorce or Dissolution — Section 18A / 18C
Section 18A of the Wills Act 1837 (for divorce and nullity) and section 18C (for dissolution of a civil partnership) do not revoke the will as a whole. Instead, they provide that, from the date of the decree absolute (or final order), any appointment of the former spouse or civil partner as executor or trustee takes effect as if they had died on that date, and any gift to the former spouse or civil partner lapses as if they had died on that date. The rest of the will continues in force.
8. Alterations — Section 21 Wills Act 1837
Section 21 of the Wills Act 1837 deals with alterations (additions, deletions or substitutions) made on the face of a will. The starting point is that an unattested alteration made after the will has been executed is of no effect: the will takes effect as if the alteration had not been made, and the original words (if still apparent) stand.
The reason for the rule is obvious — without it, anyone could tamper with an executed will and change the disposition.
First — an alteration is valid if it is itself executed in accordance with the s.9 formalities (the testator and the two witnesses sign or initial the alteration itself, in the margin or opposite it). This is the only way to make a post-execution alteration effective.
Second — an alteration made before the will was executed (and so present at execution) is effective, but the onus of proving it was present at execution lies on the person who relies on it. The court will presume an alteration was made after execution unless evidence establishes the contrary.
Third — where an alteration obliterates the original words so that they are no longer apparent (heavily crossed out, inked over, or pasted over), s.21 treats the obliteration as a partial revocation and the obliterated words are revoked, even though the alteration itself is unattested.
9. Mutual Wills
Mutual wills are a narrow equitable doctrine that occasionally arises in FLK2 scenarios.
The doctrine requires clear evidence of a legally binding agreement — not merely a shared understanding or a joint expectation. Mirror wills (where two people each leave their estate to the other and then to the same ultimate beneficiaries) are not automatically mutual wills: most mirror wills are freely revocable. The agreement must be sufficiently specific and must be intended to be legally binding. In practice a will that is intended to be mutual should say so expressly.
10. Key Notes (Chapter Summary)
The following summary table consolidates every term and rule examined in this chapter. Treat it as a revision checklist — you should be able to define each row from memory and identify the governing authority.
| Key Item | Concept | Cases / References |
|---|---|---|
| Four requirements for validity | Capacity, knowledge and approval, s.9 formalities, and the absence of undue influence/fraud/forgery. A will failing any one of the four is invalid. | Banks v Goodfellow; Wintle v Nye; s.9 WA 1837 |
| Banks v Goodfellow test | The testator must understand (i) the nature of the act, (ii) the extent of the property, (iii) the moral claims upon them, and (iv) not be affected by any insane delusion. | Banks v Goodfellow (1870); Walker v Badmin [2014]; Clitheroe v Bond [2021] |
| Golden rule | Where an elderly or seriously ill client makes a will, the solicitor should arrange for a medical practitioner to witness or approve the will. Non-compliance is not itself invalidity but invites challenge. | Kenward v Adams (1975); Key v Key [2010] |
| Parker v Felgate exception | A will is valid if the testator had capacity when giving instructions, the will was prepared per those instructions, and at execution the testator remembered having given instructions and believed the document reflected them. | Parker v Felgate (1883) |
| Knowledge and approval | Presumed on proof of capacity and due execution; affirmative proof required where testator is blind/illiterate or where the circumstances are suspicious (drafter takes a benefit). | Wintle v Nye [1959]; Gill v Woodall [2010] |
| Rectification | Section 20 AJA 1982 — court may rectify where a clerical error or misunderstanding of instructions means the will fails to carry out the testator's intentions. 6-month limit from grant. | s.20 AJA 1982; Marley v Rawlings [2014] |
| Undue influence | Must be affirmatively proved; no presumption in testamentary cases. Requires coercion, not persuasion. | Hall v Hall (1868); Edwards v Edwards [2007] |
| Section 9 formalities | Writing; signed by T (or by another in T's presence and direction); signature intended to give effect to the will; signed or acknowledged before two witnesses present at the same time; each witness signs in T's presence. | s.9 WA 1837 (as amended) |
| Section 15 — witness-beneficiary | A gift to an attesting witness (or their spouse/civil partner at date of execution) fails. The will is otherwise valid. Superfluous witnesses saved by Wills Act 1968. | s.15 WA 1837; s.1 Wills Act 1968 |
| Privileged wills | Soldiers in actual military service and mariners at sea may make wills without the s.9 formalities; may be oral; no minimum age. | s.11 WA 1837; Wills (Soldiers and Sailors) Act 1918 |
| Revocation by later will | A later valid will or codicil revokes the earlier will expressly or by necessary implication; partly inconsistent documents stand together to the extent they can. | Lemage v Goodban (1865) |
| Revocation by destruction — s.20 | Physical destruction + animus revocandi. Crossing out is not destruction (Cheese v Lovejoy). Missing will presumed destroyed by the testator. | s.20 WA 1837; Cheese v Lovejoy (1877) |
| Revocation by marriage — s.18 / 18B | Automatic. Exception: will made in contemplation of a specific marriage or civil partnership and expressed not to be revoked by it. | ss.18, 18B WA 1837 |
| Effect of divorce — s.18A / 18C | From the final order (formerly decree absolute), gifts to and appointments of the former spouse/civil partner take effect as if the former partner had died on that date. Rest of will stands. | ss.18A, 18C WA 1837 |
| Alterations — s.21 | Unattested alterations are ineffective; original words stand if still apparent. Alterations executed in the s.9 manner are effective. Obliteration beyond apparency is treated as partial revocation. | s.21 WA 1837; Ffinch v Combe [1894] |
| Mutual wills | Constructive trust arises where two testators make wills on a legally binding agreement not to revoke, and the first dies without revoking. Mirror wills are not automatically mutual. | Re Dale [1994]; Olins v Walters [2008] |
11. Revision Notes
Work through each of the following focused revision prompts. Attempt to answer from memory first — the note underneath gives the model answer and explains why the point matters for the SQE1 FLK2.
Answer & explanation
Answer & explanation
Answer & explanation
Answer & explanation
Answer & explanation
12. MCQ Practice — Five SQE-Style Questions
Each of the following five questions mirrors the style, length and difficulty of the SQE1 FLK2 single best answer questions. Attempt each question closed-book, write down your answer, then turn to the answer key. The answer key explains why each option is correct or incorrect — read every explanation in full.
A. The solicitor should refuse to act on the instructions because the client's diagnosis of dementia means that as a matter of law the client lacks testamentary capacity.
B. The solicitor should arrange for a medical practitioner to assess the client's testamentary capacity at the time of execution and record that assessment in writing, in accordance with the golden rule in Kenward v Adams (1975).
C. The solicitor should apply the Mental Capacity Act 2005 definition of capacity to the client's instructions and decline to act unless the client passes that test.
D. The solicitor should take instructions and draft the will but must insist that the two adult children be present at execution as witnesses.
E. The solicitor should tell the client that the children will in any event be entitled to a share of the estate as a matter of law and should therefore be named in the will.
Answer & explanation
B is correct — the golden rule, set out by Templeman J in Kenward v Adams (1975) and approved in Key v Key [2010], advises that where an elderly or seriously ill client makes a will — especially one departing significantly from a previous will or family expectations — the solicitor should arrange for a medical practitioner to witness or approve the will and to make a contemporaneous written record of the capacity assessment. This provides the best evidence of capacity if the will is later challenged.
A is incorrect — a diagnosis of dementia does not of itself deprive a client of testamentary capacity; the Banks v Goodfellow test focuses on understanding at the moment of execution, and a person in the early stages of dementia can still pass it.
C is incorrect — the Banks v Goodfellow test (not the MCA 2005 definition) applies to ordinary testamentary capacity (Walker v Badmin; Clitheroe v Bond).
D is incorrect — the children being present as witnesses would create a conflict and would engage s.15 (any gift to them would fail).
E is incorrect — there is no rule of forced heirship in England and Wales; the children have no automatic entitlement, although they might claim under the Inheritance (Provision for Family and Dependants) Act 1975. (See Section 2.2.)
A. The will is validly executed because Alice and Brian have both signed it as witnesses.
B. The will is validly executed because Brian has been shown the testator's signature and has signed as a witness, and Alice has previously signed as a witness in the testator's presence.
C. The will is not validly executed because the testator did not sign or acknowledge his signature in the simultaneous presence of both witnesses: section 9(c) requires the two witnesses to be present at the same time when the testator signs or acknowledges.
D. The will is not validly executed because Alice did not acknowledge her own signature in Brian's presence.
E. The will is validly executed because the formalities in section 9 can be completed in stages, so long as each witness eventually has sight of the testator's signature.
Answer & explanation
C is correct — section 9(c) requires the testator to sign or acknowledge his signature in the simultaneous presence of two or more witnesses. Here the testator signed in the presence of Alice alone, then later acknowledged his signature to Brian alone — at no single moment were both witnesses present together. The will is therefore not validly executed.
A is incorrect — it confuses the requirement that both witnesses sign with the separate requirement that both be present when the testator signs or acknowledges.
B is incorrect for the same reason: the acknowledgement to Brian was in Brian's presence only, not in the simultaneous presence of Alice as well.
D is incorrect — it misidentifies the defect; s.9 does not require witnesses to acknowledge their own signatures to each other, only to the testator.
E is incorrect — s.9 does not allow completion in stages; the simultaneous-presence requirement in s.9(c) is strict. (See Section 2.5.3.)
A. The will is revoked in its entirety by the divorce; the testatrix dies intestate and her residuary estate passes on intestacy.
B. The gift to the former husband takes effect, because section 18A of the Wills Act 1837 operates only where the former spouse has remarried.
C. Under section 18A of the Wills Act 1837 the former husband is treated as having died on the date of the final order, so the gift to him fails and the substitutional gift to the brother takes effect; the rest of the will stands.
D. The gift to the former husband takes effect, because section 18A of the Wills Act 1837 applies only where the will was executed after the final order of divorce.
E. The gift to the former husband takes effect in so far as it relates to the matrimonial home, but any other residuary assets pass to the brother.
Answer & explanation
C is correct — section 18A provides that, from the final order (formerly decree absolute), any appointment of the former spouse takes effect, and any gift to the former spouse takes effect as if the former spouse had died on that date. It does not revoke the will as a whole. The gift to the former husband lapses as if he had predeceased, so the substitutional gift to the brother ('and if not, to my brother') takes effect.
A is incorrect — divorce does not revoke the will; only marriage does.
B and D are incorrect — they invent restrictions (remarriage; post-decree execution) that are not in the statute.
E is incorrect — there is no 'matrimonial home' carve-out; the suggestion is fanciful. (See Section 2.7.4.)
A. The legacy is valid because section 15 of the Wills Act 1837 applies only to a gift to an attesting witness, not to the witness's spouse.
B. The legacy is void because section 15 of the Wills Act 1837 strikes down any gift to the spouse of an attesting witness, regardless of when the marriage took place; and it is the witness's marital status at the date of execution that matters.
C. The will is wholly invalid because the legacy to the neighbour's wife means that two of the witnesses are beneficiaries, so there are not two independent witnesses.
D. The legacy is valid if the neighbour's wife can show that she had no knowledge of the legacy at the time of execution and was not induced to witness the will on that basis.
E. The legacy is valid because section 15 only strikes down gifts to attesting witnesses themselves, and the rule in relation to the witness's spouse was abolished by the Wills Act 1968.
Answer & explanation
B is correct — section 15 provides that a gift to an attesting witness, or to the spouse or civil partner of an attesting witness at the time the will is executed, is void. The rule operates on the relationship as it stood at the moment of execution — so the marriage existing at that time is enough. The rest of the will is unaffected: only the offending gift fails.
A is incorrect — s.15 expressly catches a spouse.
C is incorrect — s.15 strikes down the gift, not the will.
D is incorrect — it invents a knowledge element that is not in the statute.
E is factually wrong — the Wills Act 1968 did not abolish the spouse rule; it preserved gifts where the witness-beneficiary's attestation was superfluous to the validity of the will (for example where there were three witnesses). (See Section 2.5.5.)
A. The photocopy is sufficient: the court will admit it to probate provided it accurately reproduces the terms of the original will.
B. A rebuttable presumption arises that the testatrix herself destroyed the original will with the intention of revoking it, and the daughter must adduce evidence sufficient to rebut that presumption before the will can be admitted to probate.
C. The fact that the will cannot be found is conclusive proof that it has been revoked by destruction, and the testatrix is treated as having died intestate.
D. The photocopy can only be admitted to probate if it bears the original signatures of the testatrix and the two witnesses.
E. The will is irrebuttably presumed to be still in existence, and the daughter should apply for an order requiring its production.
Answer & explanation
B is correct — where a will was last known to have been in the testator's possession but cannot be found after death, the common law presumes — rebuttably — that the testator destroyed it with the intention of revoking it. The daughter must therefore adduce evidence sufficient to rebut the presumption (for example evidence that the testatrix spoke affectionately of the will immediately before death, or that the desk was accessible to others with a motive to remove it). If the presumption is rebutted, the Probate Registry can admit a copy of the will to probate under NCPR 1987 rule 54.
A is incorrect — a photocopy is not automatically admissible: the presumption of destruction must first be rebutted.
C is incorrect — it overstates the law; the presumption is rebuttable, not conclusive.
D is incorrect — a copy by definition does not bear original signatures, yet it may still be admitted if the presumption is rebutted.
E is incorrect — it reverses the presumption. (See Section 2.7.2.)