Linda Cummins, Head of Wills & Probate at GWlegal, explains the formal requirements for valid wills, as well as the main things to consider when writing a will.
Should I use a solicitor or lawyer to write my will?
The first piece of advice anyone writing a will should be given is to go and see a suitably qualified and experienced solicitor or lawyer and get them to do it for you.
There is no law that says a will must be written by a solicitor or lawyer. It is a fact that any person can write their own will, and indeed people may do so using a standard pre-printed template, a regular piece of paper or online.
However, the road to the valid will can be full of potholes if you don't know what to look for and what to avoid on your journey. Therefore, using a professional to help you along the way can help lessen the risk and consequences of DIY will disputes.
What are the main things to consider when writing a will?
Once a would-be testator (ie a person making a will) has decided they need a will, they should be asking themselves some important questions, including:
- What is the extent of my estate?
- What do I want to achieve by making this will?
- Who do I want to sort it all out for me when I'm not here?
- Who is going to look after my children for me?
- Who shall I leave my estate to?
- What could happen if I exclude certain people; might they make a claim against my estate?
- What do I need to get this show on the road?
There are also very strict legal requirements that must be adhered to when making a will, whoever makes it, so that the will can be deemed valid.
What is testamentary capacity?
The first requirement for a will to be valid is that a testator needs to have demonstrated that they have testamentary capacity. The test for capacity to execute a valid will is set out in case law. As such, a testator must:
- understand what a will is and when it will come into effect
- show they intended the document to be a will
- know of and approve of its contents
- have the mental capacity to make the will
- know the extent of their estate
- know whom they should be contemplating when considering beneficiaries to leave their estate to
- know who may have a claim against their estate
- have made it of their own free will, not under duress or fear or any undue influence from any other person
What formal requirements make a will valid?
The formal requirements for wills are set down in the legal statute Section 9 of the Wills Act 1837, as amended by Section 17 of the Administration of Justice Act 1982 (for deaths after 31 December 1982). The interpretation of this statute has been given effect through various case law decisions about issues with wills; for example, the meaning of the words used, confusion of gifts or intended beneficiaries contained in the wills, and irregularities with the format of the will that come before the Courts.
To make it a valid will, these rules set out what the document made by the testator must contain and look like. The requirements are as follows:
- A 'document' suggests it must be 'in writing' to show words in a visible form, which includes typed, printed, photographed, braille etc. Last words spoken on a death bed are sadly not enough.
- The will must set out the testator's wishes as to what they want to happen to their estate when they die, or at least appoint an executor. If they don't say what they want, then the executor must distribute the estate as if the testator died intestate.
- The will must be 'signed' by the testator in the presence of two witnesses. As a rule of thumb, it's strongly recommended that none of the three people involved in the signing leave the room until after the testator and the two witnesses have all signed the will, as it can at worse invalidate the will if certain steps to acknowledge signatures haven't been taken to confirm attestation of the will.
- A 'signature' can be provided in various forms, such as the testator using his thumbprint, initials, an X or other shape, an unfinished signature, or a description as to who the testator is, rather than their actual name. All these have been permitted as they all intended to be a valid signature. A person can also sign on behalf of the testator so long as they do so at the direction of the testator and in the testator's and witnesses' presence and that the testator's direction is recorded in the attestation clause.
- The testator needs to be 18 years old unless they are eligible to make a privileged will. In which case, they can make a will at 16 years old.
Should I avoid DIY wills?
Writing and making a will can be a simple and straight forward process if done correctly and all formal and testamentary requirements are satisfied. But what may appear to the average person on the street to be a minor or even non-issue can in fact invalidate a will or result in costly court proceedings to achieve a remedy. For the standard cost of a professionally drawn will, it really is not worth taking the risk of doing it yourself and getting it wrong.
About the author
Linda Cummins is a Solicitor and Head of Wills & Probate at GWlegal, @GWlegal.
See also
Disputing whether a will has been validly executed
What is a deathbed gift and is it legal?
Find out more
Making a will (Gov)
Wills Act 1837 (Legislation)
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