Validity of wills and codicils - Execution and witnessing formalities

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Overview

Understanding the validity of wills and codicils is essential for both testamentary law and the SQE1 FLK2 exam. This article examines the detailed formalities of execution and witnessing as outlined by the Wills Act 1837, as well as the processes of revocation and revival. For aspiring legal professionals, gaining expertise in these areas is vital for offering reliable advice to clients and managing potential challenges to a will's validity. We'll cover standard requirements, special circumstances, and recent legal updates to prepare you for exams and real-world scenarios.

Essential Requirements for Valid Will Execution

The Wills Act 1837, as amended, outlines the basic requirements for a valid will:

  1. Writing: The will must be in written form, whether handwritten, typed, or printed.

  2. Signature: The testator must sign the will or acknowledge a signature made on their behalf.

  3. Intention: The signature must be made or acknowledged with the intent to give effect to the will.

  4. Witness Presence: The signature must be made or acknowledged in the presence of at least two witnesses present at the same time.

  5. Witness Attestation: Each witness must either attest and sign the will or acknowledge their signature in the presence of the testator.

Signature Placement and Form

Although the Wills Act 1837 doesn't specify a location for the signature, case law has established guidelines:

  • The signature should typically appear at the end of the will to show finality.
  • Initials or a mark can suffice as a signature if made with the intent of the testator.
  • In Re Chalcraft [1948] P 222, a thumbprint was accepted as a valid signature.

Witnessing Requirements

Witnesses play a key role in validating a will:

  • Witnesses must be present simultaneously when the testator signs or acknowledges their signature.
  • Each witness must sign in the presence of the testator, though not necessarily in each other's presence.
  • Witnesses must have the mental capacity to understand their role and be at least 18 years old.

Challenges in Will Execution

Several issues can arise during the execution process that may invalidate a will:

Mental Capacity

The testator must comprehend the nature and effect of their actions when signing the will. This includes understanding their assets and intended beneficiaries. If the testator lacks mental capacity, the will may be invalid. This issue often requires expert medical evidence.

Undue Influence

The testator's free will must not be compromised by others. This includes situations where a beneficiary exerts pressure to be included in the will or to disinherit others. Proving undue influence can be difficult, relying on the nature of the relationship and the testator's vulnerability.

Fraud

If a will is executed due to fraud, it can be invalidated. This includes scenarios where a beneficiary misrepresents contents, convinces the testator to sign a misunderstood document, or deceives the testator into signing an unintended document.

Mistakes in Execution

Even minor errors in execution can invalidate a will:

  • Incorrect Witnessing: Witnesses may not meet legal requirements, such as being beneficiaries.
  • Missing Signatures: Any missing signatures can invalidate the will.
  • Improper Acknowledgement: If signatures are not acknowledged correctly or witnesses don't sign in the testator's presence, the will may be invalid.

Codicils: Execution and Legal Effect

Definition and Purpose

A codicil is a supplementary document that changes, adds to, or revokes part of an existing will. It must follow the same formalities as a will to be valid.

Execution Requirements

Codicils must meet the same execution formalities as wills:

  • Written form
  • Signed by the testator or at their direction
  • Witnessed by two individuals present simultaneously

Legal Effect of Codicils

The execution of a codicil has notable legal effects:

  1. Partial Modification: A codicil can change specific provisions without revoking the entire will.

  2. Republication: Executing a codicil republishes the original will as of the codicil's date, potentially reviving previously invalid provisions.

  3. Incorporation by Reference: A codicil can incorporate external documents into the will if clearly identified and existing at the time of execution.

Revocation of Wills and Codicils

Methods of Revocation

The Wills Act 1837 provides methods for revoking a will or codicil:

  1. By Subsequent Instrument: Execution of a later will or codicil that expressly revokes earlier dispositions.

  2. By Destruction: Physical destruction by the testator or someone in their presence and by their direction, intending to revoke.

  3. By Operation of Law: Automatic revocation upon marriage or civil partnership, unless the will is made in contemplation of that event.

  4. By Inference: Implied revocation through inconsistent later dispositions.

Partial Revocation

A testator can revoke part of a will or codicil without affecting the entire document. This can be done through:

  • Express partial revocation in a subsequent testamentary instrument
  • Physical alteration of the original document, with proper execution of changes

Revival of Revoked Wills

A revoked will can be revived, but this requires specific steps:

  • Execution of a codicil or subsequent will showing a clear intent to revive
  • The will must still exist
  • Mere reference to an earlier will is insufficient for revival

Exceptional Circumstances and Recent Developments

Privileged Wills

Certain individuals, such as soldiers in active duty and mariners at sea, may make privileged wills that bypass standard formalities:

  • Oral declarations can be valid
  • Written wills may be valid without witnesses
  • Age restrictions are relaxed for these testators

Remote Witnessing

The COVID-19 pandemic led to temporary legislation allowing remote witnessing via video technology:

  • Wills Act 1837 (Electronic Communications) (Amendment) (Coronavirus) Order 2020
  • Extended to 31 January 2024
  • Requires real-time audio-visual link
  • Retrospective effect from 31 January 2020

International Aspects

Wills executed abroad introduce extra complexities:

  • The Wills Act 1963 allows recognition of wills according to the internal law of the testator's domicile, habitual residence, or nationality
  • Practitioners must be aware of possible conflicts in cross-border estates

Example: Complex Witnessing Scenario

Dr. Amelia Singh, a surgeon with Parkinson's disease, instructs her solicitor to sign her will on her behalf. Two nurses from a nearby hospital witness. Dr. Singh nods when asked if the signature represents her wishes. The nurses then sign, with Dr. Singh observing.

This scenario prompts questions about:

  1. The validity of the signature made on Dr. Singh's behalf
  2. The sufficiency of Dr. Singh's acknowledgment
  3. The witnessing process and legal compliance

This complex case highlights the application of witnessing formalities and potential challenges in non-standard situations.

Conclusion

Understanding the details of will and codicil execution, witnessing, and revocation is essential for success in the SQE1 FLK2 exam and future legal practice. Key points include:

  1. Fundamental requirements of the Wills Act 1837 for valid execution
  2. The importance of proper witnessing and potential pitfalls
  3. The legal effect and execution requirements of codicils
  4. Methods of revoking wills and codicils, including partial revocation
  5. Special considerations for privileged wills and international documents
  6. Recent developments in remote witnessing due to COVID-19