Posted: Monday, 23 October 2023 @ 10:37
What are the proper formalities of the will?
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
appears that the Testator intended by his signature to give effect to the Will;
signature is made or acknowledged by the Testator in the presence of two or
more witnesses present at the same time; and
and signs the Will.
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
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 https://www.gov.uk/inherits-someone-dies-without-will
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
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
Who Can Prepare a Will?
Anyone can prepare a will.
Nevertheless, suspicion will be raised if the person who
prepares it is:
• A major
• A close
relative of a major beneficiary
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:
the nature of his act (sound mind) that is he is making a will and its effects?
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  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.