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An Introduction to Wills

Posted: Monday, 23 October 2023 @ 10:37

What are the proper formalities of the will?

Age As a general rule, a testator must have reached the age of 18 at the time of making a Will (the Wills Act 1837, s.7).


In addition, for deaths arising after 1 January 1983, Section 9 of the Wills Act 1837 (as substituted by the Administration of Jus-tice Act 1982, s. 17) (‘the Act’) says that no Will is valid unless:

•              It is in writing, and signed by the Testator, or by some other person in his presence and by his direction; and

•              It appears that the Testator intended by his signature to give effect to the Will; and

•              The signature is made or acknowledged by the Testator in the presence of two or more witnesses present at the same time; and

•              Each witness either:

◦              attests and signs the Will.

◦              or acknowledges his signature, in the presence of the Testator (but not normally in the presence of any other witnesses), but no form of attestation shall be necessary.

In the event these formalities are not complied with the will re-verts to intestacy.

What Is Intestacy?

In the event that the will is invalid you will either be left with the previous will or the rules of intestacy will apply.

What are the rules of intestacy?

When a person dies without leaving a valid will, their property (the estate) must be shared out according to certain rules. These are called the rules of intestacy. A person who dies with-out leaving a will is called an intestate person.  Also consider government rules

What is the form of the signature?

The signature of the testator can be merely a mark (for example a thumb prints as in Borman v Lel)

Can Someone Below 18 Make a Valid Will?

Not unless they have privileged access. Section 11 of the WA states the formal requirements do not apply to: Any soldier being in actual military service, or any mariner or seaman at sea… though under the age of eighteen years.  

Where Does the Will Have to Be Signed?

It does not have to be “at the foot or end thereof” (following the AJA 1982 s 17).

It can be signed by someone other than the testator as it or her direction.

Who Can Prepare a Will?

Anyone can prepare a will. Nevertheless, suspicion will be raised if the person who prepares it is:

•              A major beneficiary

•              A close relative of a major beneficiary

•              A partner of a major beneficiary

There is no rule that prohibits one of the above preparing the will, but suspicions will be raised.

What Mental Capacity Do You Have to Have to Make a Will?

The common law standard was laid down in Banks v Goodfellow and remains the leading case which is that the testator must:

a)            Understand the nature of his act (sound mind) that is he is making a will and its effects?

b)            Understand the extent of his property being disposed of (sound memory) though he/she does not need remember every one of his assets.

c)            Be able to comprehend and appreciate the claims to which a person making a will ought to give effect (sound under-standing)

What Are the Key Duties of Legal Practitioners?

If a will has been prepared by a solicitor, it creates additional obligations upon them.

The Golden Rule The ‘Golden Rule’ was set out in the judgment of Templeman J in Kenward v. Adams (1975) The Times 29 Nov:

“In the case of an aged testator or a testator who has suffered a serious illness, there is one golden rule which should always be observed, however straightforward matters may appear, and however difficult or tactless it may be to suggest that precautions be taken: the making of a will by such a testator ought to be witnessed or approved by a medical practitioner who satisfies himself of the capacity and under-standing of the testator, and records and preserves his examination and finding”.

While the golden rule has been widely approved by the Courts as having the potential to reduce the risk of a claim of lack of testamentary capacity (e.g., see Sharp v. Adam), and should therefore be offered to testators as an additional precaution even if not observed.

The rule is expressed to apply to two categories of testator, namely those who are ‘aged’ or have suffered a ‘serious illness’, and therefore the next step is to consider which illnesses are ‘serious’ for this purpose, and how old ‘aged’ is.

The case of Re Simpson [1977] 121 SJ 224 provides that there is one golden rule that is to be observed, however straightforward the will and however tactless the suggestion, that the making of a will by an aged or seriously ill testator ought to be witnessed or approved by a medical practitioner who has satisfied himself of the capacity and understanding of the testator, and records and preserves his examination or findings.