Validity of wills and codicils - Formal requirements under the Wills Act

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Overview

Understanding the formal requirements for wills and codicils is essential for aspiring legal professionals, especially those preparing for the SQE1 FLK2 exam. The Wills Act 1837, as amended, sets out the necessary criteria for valid wills in England and Wales. These rules ensure a testator's intentions are legally upheld, preventing fraud, coercion, and misunderstandings. This article explores the statutory requirements and their development through case law.

Essential Elements of a Valid Will Under the Wills Act 1837

1. Writing Requirement

A will must be documented in writing. This serves several purposes:

  • Provides a permanent record of the testator's intentions
  • Reduces potential for fraud or misinterpretation
  • Makes probate easier by providing a tangible document for review

While the Act doesn't specify the medium, courts have accepted various forms, including typewritten and, in rare cases, electronic formats, though the latter is still debated legally.

2. Signature of the Testator

The testator's signature is a key element of validity. Considerations include:

  • Any mark intended as a signature is sufficient
  • If the testator cannot sign, another may do so in their presence and under their direction
  • The signature's placement is vital, as it must intend to give effect to the will

Example: In Lim v Thompson [2009] EWHC 3341 (Ch), a will signed in the attestation clause was found valid, showcasing flexible interpretation where intention is clear.

3. Witnessing Requirements

Witnessing a will prevents fraud and confirms authenticity. Key points include:

  • Two witnesses must be present simultaneously during the testator's signing
  • They must sign the will or acknowledge their signatures in the testator's presence
  • Witnesses must be of sound mind and over 18
  • Ideally, witnesses aren't beneficiaries to avoid invalidating related gifts

Example: In Marley v Rawlings [2014] UKSC 2, the Supreme Court emphasized the strict need for compliance. Despite clear intention, a couple's mistaken will signing led to invalidation due to improper execution.

Attestation Clause and Presumption of Due Execution

An attestation clause certifies the statutory formalities were followed. While not mandatory, it serves to:

  • Create a presumption of due execution
  • Provide evidence of compliance with witnessing requirements
  • Help in contentious probate cases

Example: In Channon v Perkins [2005] EWCA Civ 1808, the Court of Appeal upheld the presumption of due execution, even when a witness struggled to recall signing, highlighting the presumption's robust nature.

Alterations and Revocation

Alterations to Wills

Alterations after execution must meet specific formalities:

  • They require the testator's signature and witnessing, similar to the original will
  • Alterations on the face of the will are presumed after execution unless proved otherwise
  • Unattested changes are usually ignored, with the will read as originally executed

Methods of Revocation

The Wills Act allows revocation through:

  1. A new will or codicil executed properly
  2. A written document declaring an intent to revoke, executed like a will
  3. Destroying the will with intent to revoke
  4. Operation of law (e.g., marriage, unless the will anticipates the marriage)

Partial revocation allows specific provisions to be revoked while leaving the rest intact.

Dependent Relative Revocation

This applies when a testator revokes a will, believing a new one is valid or an earlier one is still effective. If mistaken, the court may restore the revoked will, assuming the revocation was conditional.

Codicils

A codicil modifies an existing will. To be valid, it must meet the same requirements as a will, including writing, signature, and witnessing. Codicils are often used for minor updates, such as changing a beneficiary.

Testamentary Capacity and Its Relation to Formal Requirements

While not a formal requirement, testamentary capacity is critical for validity. The test from Banks v Goodfellow (1870) LR 5 QB 549 requires that the testator:

  1. Understands the nature and effect of making a will
  2. Comprehends the extent of their property
  3. Recognizes claims of potential beneficiaries
  4. Is not affected by mental disorders influencing their decisions

Capacity must exist at execution time, intersecting with formal requirements through evidence of signing and coherency in the will's content, often challenged alongside execution compliance.

Consequences of Non-Compliance

Failure to meet the Wills Act requirements can lead to:

  • Invalidity: The will has no legal effect
  • Intestacy: Estate distributed according to intestacy rules if the will is invalid
  • Disputes: Potential legal challenges and arguments among beneficiaries

The Role of Legal Professionals

Solicitors play a vital role in ensuring will validity by:

  • Guiding testators through creation or modification
  • Ensuring legal compliance
  • Verifying the document reflects the testator's wishes
  • Advising on complex cases, like international or digital assets

Conclusion

Understanding the formal requirements for wills and codicils is key for exam success and future legal practice. These rules, rooted in the Wills Act 1837 and refined through case law, protect testators' intentions and preserve the integrity of the will-making process. As legal practices change, particularly regarding electronic wills, a thorough understanding of these principles remains critical.