Valid Will?

All wills created in English and Wales have to comply with Wills Act 1837. This in principle creates three requirements. 

• Does the person making the will understand what they are doing or have sufficient testamentary capacity. 
• Do they have a general intention to make a will and is that intention to make this particular will.
• Does the will comply with the formalities required under section 9 Wills Act 1837. 

Section 9 Wills Act 1837 says - no will shall be valid unless,

(a) it is in writing, and signed by the testator, or by some other person in his presence and by his direction and

(b) it appears that the testator intended by his signature to give effect to the will and

(c) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and

(d) each witness either (i) attests and signs the will or (ii) acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness.

Testamentary Capacity

This means that at the time of making or signing the will the will make maker sufficiently understood what they were doing. That is, the consequences of their actions and that they wanted to make this particular will at this time leaving gifts or assets to certain individuals.

This is following the principles of a case called Banks v Goodfellow (1870). 

The person making the will must understand the nature and effect of their will. They must have an idea of the extent of their property which they are giving away under their will. They must also be aware of any individuals which they would usually be expected to provide for. This is even if the will maker decides not to give them any gifts. Their mind must be free from any delusions which may cause reason for the will maker not to benefit individuals. 

In Writing

To comply with section 9 (a) Wills Act 1837 a will must be a written document. This does not mean that on occasions people have taken this to some interesting degrees. For example it is said that once someone wrote their will on the side of a cow. The main problem here was not so much confirming the will was in writing, but more who was going to look after the cow.

Attestation Clause

Mostly checking to see if the will is validly seeing if it has been signed by the will maker and witnessed or executed by two independent people. Does the will comply with Section 9 (c) and (d) of the Wills Act 1837? The bottom of a will contains an attestation clause which often says, 

IN WITNESS whereof I have hereunto set my hand at the foot or end of this my Will this  [Day]             day of {Month]  2021 in the presence of the two subscribing witnesses

SIGNED BY the above named TESTATOR / TESTATRIX

[Will Creators Name]

In our presence and then by us in his / her

Witness signature: Witness signature:

Print name: Print name:

Address: Address:

Occupation: Occupation:

The above is a typical attestation found on numerous wills and complies with section 9 Wills Act 1837. If the attestation is not valid this is a ground to dispute a will owing to lack of due execution. On home made wills this could be easily be overlooked resulting in an invalid will. 

Signed?

A will maker needs to, if they are able to put pen to paper. This might be their signature, the initial, or even their attempt at writing their name. There are circumstances where they will makers fingerprint has been accepted.

Intention

Section 9 (b) Wills Act 1837 refers to the will makers intention.  

(b) it appears that the testator intended by his signature to give effect to the will. This means that the will maker understands the consequences of their actions and is certain that this is what they want to do.

Further Information

• Probate Service
• Probate Process
• Intestate
• Valid Will
• Disputing the Will