Learning Outcomes
After reading this article, you will be able to identify and apply the statutory formalities for valid wills and codicils under the Wills Act 1837. You will understand the requirements for writing, signature, and witnessing, the legal effect of attestation clauses, and the rules for valid alterations and codicils. You will also be able to spot and avoid common pitfalls that may render a will or codicil invalid for SQE1 purposes.
SQE1 Syllabus
For SQE1, you are required to understand the formal requirements for valid wills and codicils under the Wills Act 1837. In your revision, pay particular attention to:
- the statutory requirements for due execution of a will (writing, signature, and witnessing)
- the legal consequences of failing to comply with these requirements
- the rules for valid codicils and alterations to wills
- the effect of attestation clauses and the presumption of due execution
- how to identify and avoid invalid gifts to witnesses or their spouses/civil partners.
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 formal requirements for a valid will under the Wills Act 1837?
- If a beneficiary acts as a witness to a will, what is the effect on their gift and the validity of the will?
- How must an alteration to a will be executed to be effective?
- What is a codicil, and what formalities must it satisfy to be valid?
Introduction
A will is only valid if it complies with the strict formal requirements set out in the Wills Act 1837. These rules are designed to ensure that a testator’s wishes are clear and genuine, and to prevent fraud or undue influence. For SQE1, you must be able to identify the statutory requirements for valid wills and codicils, understand the effect of non-compliance, and apply these principles to practical scenarios.
Statutory Formalities for Valid Wills
The Wills Act 1837, as amended, sets out the mandatory requirements for a valid will. All of the following elements must be satisfied:
Writing
A will must be in writing. There is no prescribed form, but the document must be a permanent record of the testator’s intentions.
Key Term: will A legal document by which a person (the testator) sets out how their property is to be distributed on death.
Key Term: testator The person making the will.
Signature
The will must be signed by the testator, or by another person in the testator’s presence and at their direction.
Key Term: signature Any mark, initials, or symbol intended by the testator to authenticate the will.
The signature does not have to be at the end of the will, but it must be clear that the testator intended by their signature to give effect to the document as their will.
Witnessing
The testator’s signature must be made or acknowledged in the presence of at least two witnesses present at the same time. Each witness must then sign the will or acknowledge their signature in the presence of the testator (but not necessarily in the presence of the other witness).
Key Term: witness A person who observes the testator sign or acknowledge the will and then signs the will themselves to confirm this.
Key Term: attestation The act of witnessing the testator’s signature and signing the will to confirm this.
Attestation Clause
Although not required by law, a well-drafted will includes an attestation clause confirming that the statutory formalities were complied with. This clause raises a presumption of due execution, making it easier to prove the will’s validity if challenged.
Key Term: attestation clause A statement in the will confirming that the will was signed and witnessed in accordance with the Wills Act 1837.
Who Can Be a Witness?
Any person of sufficient understanding can act as a witness, including minors (if capable of understanding the significance of the act). However, a blind person cannot be a witness, as they cannot see the testator sign.
Gifts to Witnesses
If a beneficiary or their spouse/civil partner acts as a witness, the gift to that person is void, but the rest of the will remains valid.
Key Term: void gift to witness A gift in a will to a person (or their spouse/civil partner) who acts as a witness is invalid, but the will itself is not invalidated.
Worked Example 1.1
A testator signs their will in the presence of two witnesses, one of whom is also a beneficiary under the will. What is the effect on the will and the beneficiary’s gift?
Answer: The will is valid, but the gift to the beneficiary-witness is void. The rest of the will takes effect as written.
Signature by Another Person
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. The same witnessing requirements apply.
Worked Example 1.2
A testator is physically unable to sign their will. They ask their friend to sign for them, in the presence of the testator and two witnesses. Is the will valid?
Answer: Yes, provided the friend signs in the testator’s presence and at their direction, and the witnessing requirements are met.
Alterations to Wills
Any alteration to a will after execution is only valid if executed with the same formalities as the original will (i.e., signed by the testator and two witnesses). If not, the alteration is ignored and the will stands as originally executed, unless the original wording is no longer apparent—in which case the alteration is effective only if the testator intended to revoke that part.
Key Term: alteration A change made to a will after execution, which must be executed with the same formalities as the will to be valid.
Worked Example 1.3
A testator crosses out a legacy in their will and writes in a new amount, but does not sign or have the alteration witnessed. What is the effect?
Answer: The alteration is invalid. The original legacy remains effective, unless the original wording is completely obliterated and cannot be read, in which case that part of the will is treated as revoked.
Codicils
A codicil is a document that amends, adds to, or revokes part of a will. A codicil must be executed with the same formalities as a will (writing, signature, and two witnesses). A valid codicil republishes the will, confirming it as if made at the date of the codicil.
Key Term: codicil A supplementary document executed with the same formalities as a will, used to amend, add to, or revoke part of a will.
Worked Example 1.4
A testator makes a will in 2015 and a codicil in 2020 changing the executor. The codicil is properly executed. What is the effect?
Answer: The codicil is valid and republishes the will as if made in 2020, with the new executor.
Revocation of Wills
A will may be revoked by:
- Marriage or civil partnership (unless the will was made in contemplation of that event)
- A later will or codicil expressly or impliedly revoking the earlier will
- A written declaration of revocation executed with the same formalities as a will
- Physical destruction of the will by the testator (or someone in their presence and at their direction) with the intention to revoke
Key Term: revocation The legal act of cancelling a will, making it of no effect.
Exam Warning
If a testator destroys a will intending to revoke it, but does so only on the condition that a new will is valid, and the new will is invalid, the doctrine of dependent relative revocation may apply to revive the earlier will. Always check the testator’s intention.
Revision Tip
Always check that every alteration or codicil is executed with the same formalities as a will. If in doubt, advise the client to execute a new will.
Key Point Checklist
This article has covered the following key knowledge points:
- The statutory requirements for a valid will: writing, signature, and witnessing by two witnesses present at the same time.
- The effect of non-compliance: the will is invalid and the estate passes by intestacy.
- The rules for valid codicils and alterations: must be executed with the same formalities as a will.
- The legal effect of an attestation clause and the presumption of due execution.
- Gifts to witnesses (or their spouse/civil partner) are void, but the rest of the will remains valid.
- Revocation of a will can occur by marriage/civil partnership, later will/codicil, written declaration, or destruction with intent to revoke.
Key Terms and Concepts
- will
- testator
- signature
- witness
- attestation
- attestation clause
- void gift to witness
- alteration
- codicil
- revocation
