Learning Outcomes
After reading this article, you will be able to identify and apply the statutory requirements for the valid execution and witnessing of wills and codicils in England and Wales. You will understand the meaning and significance of key terms such as execution, attestation, and codicil, and be able to spot common pitfalls that can render a will or codicil invalid. You will also be able to answer SQE1-style questions on this topic.
SQE1 Syllabus
For SQE1, you are required to understand the formal requirements for valid wills and codicils, with particular focus on execution and witnessing. In your revision, pay close attention to:
- the statutory requirements for execution under the Wills Act 1837
- the rules for valid witnessing and attestation of wills and codicils
- the consequences of non-compliance with execution or witnessing formalities
- the definition and requirements for codicils
- the effect of improper witnessing or execution on the validity of testamentary documents
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
- What are the minimum requirements for a valid will under the Wills Act 1837?
- Can a beneficiary or their spouse act as a witness to a will? What is the effect if they do?
- What is a codicil, and how must it be executed to be valid?
- True or false: A will signed by the testator in the presence of only one witness is valid if the witness also signs.
Introduction
A will or codicil is only valid if it complies with strict statutory formalities. The Wills Act 1837 sets out the requirements for execution and witnessing. If these rules are not followed, the document will not be admitted to probate, and the testator’s estate may be distributed contrary to their wishes. For SQE1, you must know the technical requirements and be able to apply them to practical scenarios.
Execution and Witnessing: The Statutory Requirements
A will (or codicil) must satisfy the following requirements to be valid:
- It must be in writing.
- It must be signed by the testator (or by another person in the testator’s presence and at their direction).
- The testator must intend their signature to give effect to the will.
- The signature must be made or acknowledged by the testator in the presence of at least two witnesses present at the same time.
- Each witness must either attest and sign the will, or acknowledge their signature, in the presence of the testator.
Key Term: execution The process of completing all formalities required by law for a will or codicil to be valid, including signing and witnessing.
Writing Requirement
The will or codicil must be in writing. This includes handwritten, typed, or printed documents. There is no restriction on the material used, but pencil is discouraged as it may be seen as deliberative rather than final.
Key Term: codicil A separate testamentary document that amends, adds to, or partially revokes an existing will. It must be executed with the same formalities as a will.
Signature by the Testator
The testator must sign the will. Any mark intended as a signature is sufficient (e.g., initials, a cross, or a thumbprint), provided it is made with the intention of authenticating the document.
Key Term: attestation The act of witnessing the testator’s signature and signing the will as a witness, confirming that the formalities have been complied with.
If the testator is unable to sign, another person may sign on their behalf, but only in the testator’s presence and at their direction.
Intention to Give Effect
The testator must intend their signature to give effect to the will. This is usually clear if the signature is at the end of the document, but the law does not require a specific placement.
Presence of Witnesses
The testator must sign or acknowledge their signature in the presence of at least two witnesses, both present at the same time. The witnesses must be able to see the act of signing, but do not need to know the document is a will.
Witnesses’ Attestation and Signature
Each witness must sign the will (or acknowledge their signature) in the presence of the testator. The witnesses do not need to sign in each other’s presence, but both must be present when the testator signs or acknowledges.
Key Term: attestation clause A statement in the will confirming that the statutory requirements for execution and witnessing have been complied with.
Who Can Be a Witness?
Any person with sufficient understanding can act as a witness. However, a beneficiary or their spouse/civil partner should not witness the will, as this will invalidate any gift to them (but not the will itself).
Worked Example 1.1
A testator signs their will in the kitchen with their neighbour present. Later, in the living room, the testator asks their friend to sign as a witness, but the neighbour is not present. Is the will valid?
Answer: No. Both witnesses must be present together when the testator signs or acknowledges their signature. Here, the two witnesses were not present at the same time, so the will is invalid.
Worked Example 1.2
A testator asks their carer to sign the will on their behalf, as they are unable to write. The carer signs in the presence of the testator and two witnesses, who then sign in the testator’s presence. Is this valid?
Answer: Yes. The will is validly executed if the signature is made by another person in the testator’s presence and at their direction, and all other formalities are complied with.
Attestation Clauses and Presumption of Due Execution
A well-drafted will includes an attestation clause. If present, there is a legal presumption that the will was properly executed. If absent, evidence may be required to prove due execution.
Worked Example 1.3
A will is found with only the signatures of the testator and two witnesses, but no attestation clause. Can it be admitted to probate?
Answer: Yes, if evidence is provided that the statutory formalities were complied with. The absence of an attestation clause does not invalidate the will, but it removes the presumption of due execution.
Consequences of Improper Execution or Witnessing
If any of the statutory requirements are not met, the will or codicil is invalid. Common errors include:
- Only one witness present at signing
- Witnesses not present together
- Witnesses signing after the testator’s death
- Beneficiary or their spouse acting as witness (gift to them fails)
Exam Warning
If a will is not validly executed, it will not be admitted to probate. The estate will be distributed according to any earlier valid will, or if none, under the intestacy rules.
Codicils: Formalities and Legal Effect
A codicil is used to amend or supplement an existing will. To be valid, it must be executed with the same formalities as a will. This means it must be in writing, signed by the testator (or at their direction), and witnessed by two witnesses present at the same time.
A valid codicil republishes the will, confirming it as if made at the date of the codicil. This can affect the interpretation of the will, especially if beneficiaries or assets have changed.
Worked Example 1.4
A testator makes a will in 2018 and a codicil in 2022, witnessed by two different people. The codicil adds a new legacy. Is the codicil valid, and what is the effect on the will?
Answer: If the codicil is executed with the same formalities as a will, it is valid. The will is republished as at the date of the codicil, and the new legacy takes effect.
Privileged Wills and Special Circumstances
Certain people (e.g., soldiers on active service, mariners at sea) can make privileged wills, which do not need to comply with the usual formalities. These are rare and outside the scope of most SQE1 questions, but you should be aware of their existence.
Remote Witnessing (Temporary Provisions)
In response to the COVID-19 pandemic, temporary legislation allows for remote witnessing of wills by video link, provided all other requirements are met. This applies to wills made between 31 January 2020 and 31 January 2024.
Common Pitfalls and Practical Advice
- Always ensure both witnesses are present together when the testator signs.
- Do not allow a beneficiary or their spouse/civil partner to act as a witness.
- Use an attestation clause to create a presumption of due execution.
- If in doubt, seek legal advice or arrange for execution in a solicitor’s office.
Revision Tip
For SQE1, memorise the five key requirements for valid execution and witnessing under the Wills Act 1837. Practice applying them to fact patterns.
Key Point Checklist
This article has covered the following key knowledge points:
- The statutory requirements for valid execution and witnessing of wills and codicils under the Wills Act 1837
- The meaning and importance of execution, attestation, and attestation clauses
- The effect of improper execution or witnessing on validity
- The requirements for valid codicils and their legal effect
- The risks of allowing beneficiaries or their spouses to act as witnesses
- The use of privileged wills and temporary remote witnessing provisions
Key Terms and Concepts
- execution
- codicil
- attestation
- attestation clause
