Validity of wills and codicils - Intention to make a will

Learning Outcomes

This article explains the legal requirements for testamentary intention in wills and codicils, showing how intention operates as a distinct element of validity alongside testamentary capacity and knowledge and approval. It outlines the modern test for intention, the effect of s 9 Wills Act 1837 (especially s 9(b)) in linking signature and intention, and how the courts use presumptions of due execution, knowledge and approval, and intention. The article analyzes when those presumptions arise, when they are displaced by suspicious circumstances, and how affidavit evidence, attestation clauses, and attendance notes are used to prove intention, knowledge and approval, and due execution in practice. It reviews common grounds on which intention is challenged in SQE‑style problems, including undue influence, fraud, mistake about the nature or effect of the document, and lack of genuine free will. It examines the treatment of privileged wills and codicils, rectification and the use of extrinsic evidence, and their interaction with intention. Finally, it provides practical, exam‑focused guidance on identifying facts that support or undermine testamentary intention and on applying the relevant authorities to multiple‑choice questions and case‑study scenarios.

SQE1 Syllabus

For SQE1, you are required to understand the legal rules and principles governing the intention to make a will or codicil, with a focus on the following syllabus points:

• the requirement for testamentary intention as a separate element of will validity
• the distinction between intention, capacity, and knowledge and approval
• the legal test for intention and how it is established in practice
• the effect of undue influence, fraud, or mistake on intention
• how the courts approach suspicious circumstances and challenges to intention
• practical steps to ensure a will reflects genuine intention
• how s 9 Wills Act 1837 (especially s 9(b)) evidences intention through the signature
• when an attestation clause assists proof, and when affidavits are required
• the role of privileged wills and codicils in evidencing intention
• how rectification and extrinsic evidence (AJA 1982 ss 20 and 21) fit with intention and knowledge/approval

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.

1. What is the difference between testamentary capacity and testamentary intention?
2. True or false? A will is valid if the testator signs it without knowing its contents.
3. What is the legal effect if a will is made as a result of undue influence?
4. What must be shown to prove that a testator had the intention to make a will?

Introduction

A valid will or codicil must reflect the genuine intention of the testator to dispose of their property on death. Intention is a distinct legal requirement, separate from capacity and formalities. For SQE1, you must be able to identify when intention is present, how it is proved, and what can invalidate it.

Testamentary intention is often straightforward where a will is professionally prepared, read over, and executed with due formalities. However, intention can be disputed where the testator signs something misdescribed to them, believes they are signing a draft, is coerced, is misled about the effect or contents, or where circumstances are sufficiently suspicious that the court requires positive proof rather than relying on presumptions. The requirement that the testator’s signature be intended “to give effect to the will” (Wills Act 1837 s 9(b)) links intention closely to execution: a signature must be affixed with the purpose that the document operate as the testator’s will.

Key Term: testamentary intention
The testator’s conscious and voluntary decision that a document is to operate as their will, disposing of their property on death.

Testamentary intention: the legal requirement

A will is only valid if the testator intended the document to operate as their will. This means the testator must have understood that they were making a will (or codicil) and wanted it to take effect on death. Intention is assessed at the time the will is executed.

The formalities in s 9 of the Wills Act 1837 support this: not only must the will be signed and witnessed, but under s 9(b) the signature must be made with the intention of giving effect to the will. A signature that is merely incidental—such as signing a covering envelope or a different document—does not satisfy the requirement if the testator did not intend that signature to make the will operative.

Privileged wills are an exception to formalities but not to intention. A soldier on actual military service or a mariner/seaman at sea may make an informal will and even an oral will (Wills Act 1837 s 11). The only requirement remains intention to dispose of property on death; the form is relaxed, not the need for genuine testamentary intention.

Key Term: privileged will
A will made by a soldier on actual military service or a mariner or seaman at sea which may be valid without compliance with s 9 formalities, provided the testator intended to dispose of property on death.

Codicils are separate testamentary documents. Intention must exist at the execution of each codicil. A codicil can confirm and republish an earlier will; the testator’s intention at the codicil date can thus re‑affirm the will.

Worked Example 1.1

Scenario:
Mr. Patel signs a document titled "Will" in the presence of two witnesses. He believes he is signing a draft for his solicitor to review, not his final will. Is there testamentary intention?

Answer:
No. If Mr. Patel did not intend the document to operate as his will, there is no testamentary intention and the document is not valid as a will.

Worked Example 1.2

Scenario:
Ms. Green signs her will after it is read aloud to her by her solicitor. She confirms she understands and wishes it to take effect. Is knowledge and approval present?

Answer:
Yes. Ms. Green’s actions show both intention and knowledge and approval.

Worked Example 1.3

Scenario:
An elderly testator leaves their entire estate to a new carer who arranged for the will to be drafted and signed. The family challenge the will, alleging undue influence.

Answer:
The court will scrutinise the circumstances closely. If there is evidence of coercion or lack of intention, the will may be set aside.

Worked Example 1.4

Scenario:
A testator places their unsigned will in an envelope and writes on the envelope “The last will and testament of K Brown.” They die without signing the will itself. Does the writing on the envelope satisfy intention?

Answer:
No. Intention must be evidenced by signing the will (or by valid privileged will rules). Writing on an envelope does not amount to signing the will with the intention to give effect to it under s 9(b).

Worked Example 1.5

Scenario:
Husband and wife execute mirror wills in the solicitor’s office but each accidentally signs the other’s will. They both intended to execute a will giving effect to their testamentary wishes. Is intention defeated?

Answer:
Intention to give effect to a will may still be satisfied: each signed a testamentary document intending it to operate. The court can address the error via rectification where the execution error is clerical and the document was signed with the intention to give effect to a will. The issue is not lack of intention but a mistake capable of remedy.

Key Term: attestation clause
A clause recording that the requirements of s 9 Wills Act 1837 were complied with. It raises a presumption of due execution and assists proof of intention and knowledge/approval.

Distinguishing intention from capacity and knowledge/approval

Testamentary intention is not the same as testamentary capacity. Capacity is the Banks v Goodfellow standard: at the time of execution the testator must understand the nature of the act and its effects, the extent of the property, and the claims to which they ought to give effect, and be free of any disorder of the mind that perverts their sense of right. A person may have capacity but lack intention (for example, if they sign a document not realising it is a will). Equally, a person may intend a document to operate as a will but lack capacity, in which case the will fails for lack of capacity.

Similarly, intention is distinct from knowledge and approval, which requires the testator to understand and accept the contents of the will they intend to take effect. A testator may intend a document to be their will but be unaware of particular terms slipped in or altered; the will may then fail for lack of knowledge and approval even though intention existed.

Key Term: knowledge and approval
The testator’s understanding and acceptance of the contents of the will at the time of execution.

Key Term: undue influence
Coercion or pressure that overcomes the testator’s free will, resulting in a will that does not reflect their true wishes.

How is intention established?

The courts presume intention if the testator signs a document that appears to be a will and complies with the formalities. The presumption is strengthened by an attestation clause reciting due execution. However, this presumption can be rebutted by evidence that the testator did not intend the document to be a will (for example, if they thought it was a draft or non‑operative notes) or that the signature was not intended to give effect to the will under s 9(b).

Where the presumption is weakened or displaced, the probate registry may require affidavit evidence. Situations include the absence of an attestation clause, irregular execution, or indications on the face of the will that it has been altered, damaged or mutilated. Affidavits may be called to prove:

• due execution (preferably from a witness to execution)
• the date of execution if undated
• knowledge and approval, especially if the testator was blind, illiterate, or the will was signed by someone else at their direction
• the will’s plight and condition, where alterations or physical damage could suggest attempted revocation or tampering

Circumstances that routinely trigger closer scrutiny include where a major beneficiary (or someone closely associated with them) prepared or supervised the making of the will, where the testator’s vulnerability was significant, or where the distribution is unexpected and calls for explanation.

Key Term: suspicious circumstances
Facts surrounding execution that call for positive proof the testator intended the will to take effect and knew and approved its contents, rather than relying solely on presumptions.

Knowledge and approval: a related but distinct requirement

Even if intention is present, the will is only valid if the testator knows and approves its contents. This requires more than a general understanding of having made a will: the testator must understand what it says and agree to it. The presumption of knowledge and approval arises with due execution of a rational will but is displaced in suspicious circumstances.

Examples where the court requires positive proof include:

• the testator is blind, illiterate, or does not read English
• the will was signed by another at the testator’s direction
• the will was prepared by or on behalf of a substantial beneficiary
• the will is complex or unusual, or significantly departs from prior statements of wishes

Evidence often comes from reading over the will to the testator, explanations provided by the solicitor, and attendance notes recording questions asked and the testator’s responses confirming understanding and assent. A well‑drafted attestation clause can record that the will was read over or explained, helping avoid later disputes.

Worked Example 1.6

Scenario:
A testator is blind and the will is prepared by a principal beneficiary. It is executed in the presence of two witnesses without being read aloud. The distribution is unexpectedly generous to the preparer. What is required?

Answer:
The court will require positive evidence of knowledge and approval and may refuse probate if not satisfied. Best practice would have been a special attestation clause and reading over/explaining the will; in its absence, detailed affidavit evidence will be needed.

Undue influence, fraud, and mistake

A will is not valid if the testator’s intention is overborne by undue influence, or if the will is the result of fraud or mistake. The law distinguishes between persuasion (which is allowed) and coercion (which is not). The burden of proving undue influence or fraud lies on the person challenging the will.

Undue influence in probate requires proof that pressure overcame the testator’s free will; ordinary familial influence or appeals to affection do not suffice. Evidence often includes isolation, control of access to the testator, secrecy over will‑making, and steps preventing independent advice. Fraud includes misleading the testator about the nature or contents of the document, or suppressing or falsifying information to procure execution.

Mistakes can affect validity in two distinct ways:

• mistake about the nature of the document: the testator did not intend to make a will because they were misled into signing something else; intention is absent
• mistake in the will’s expression: the testator intended to make a will, but a clerical error or failure to understand instructions means the document does not reflect intentions; this is addressed by rectification under Administration of Justice Act 1982 s 20, where the court may order the will to be corrected to carry out the testator’s intentions

Extrinsic evidence may be admitted to interpret ambiguous or meaningless parts of a will under AJA 1982 s 21. This interacts with knowledge and approval and rectification rather than replacing the need to prove intention.

Exam Warning

If a will is made as a result of force, fear, fraud, or undue influence, it will not be admitted to probate. The challenger must prove that the testator’s free will was overborne.

Suspicious circumstances and challenges to intention

Where there are suspicious circumstances—such as a major beneficiary preparing the will, or the testator being vulnerable—the court will require positive evidence that the testator intended the will to take effect and knew and approved its contents. The court may refuse probate if not satisfied.

In practice, this often results in the probate registry calling for affidavits (for example, of due execution, knowledge and approval, or plight and condition) under the Non‑Contentious Probate Rules. An attestation clause helps, but does not prevent scrutiny where suspicion is present. The absence of contemporaneous attendance notes is a common problem; solicitors should document explanations and the testator’s acknowledgments carefully.

In contested cases, a caveat may be entered to prevent a grant while issues of validity are explored. If a caveat is warned, evidence must be assembled promptly to resist or accept the challenge.

Practical steps to ensure intention

Solicitors should always ensure that the testator understands the nature and effect of the will, and that it reflects their wishes. This may involve reading the will aloud, explaining its terms, and making a detailed attendance note. If the testator is elderly or unwell, consider obtaining a medical opinion and having an independent witness present. Take instructions in person where possible, and avoid taking instructions through or in the presence of someone who stands to benefit unless the testator insists; record the reason if a third party is present.

Use appropriate attestation clauses, especially for blind or illiterate testators or where a third party signs at the testator’s direction. Warn clients not to have beneficiaries or their spouses/civil partners witness the will. Where will‑making occurs in unusual settings (for example, at home or in hospital), consider steps to reduce risk: read over the will, confirm understanding in the testator’s own words, and ensure the testator is free from pressure and has the opportunity to reflect privately.

Keep in mind:

• privileged wills require genuine intention even though formalities are relaxed
• codicils need the same safeguards: intention, capacity, and knowledge and approval at the time of execution
• if the will bears alterations, unsigned and unwitnessed alterations are generally presumed to be post‑execution and ineffective unless proven otherwise; do not rely on them without proper evidence
• if the physical condition of the will raises questions, be prepared to explain it by affidavit

Revision Tip

Where there is any doubt about intention or capacity, obtain a contemporaneous medical opinion and keep a clear record of the testator’s instructions and understanding.

Key Point Checklist

This article has covered the following key knowledge points:

• Testamentary intention is a separate legal requirement for a valid will or codicil.
• Intention means the testator wanted the document to operate as their will; s 9(b) requires that the signature be intended to give effect to the will.
• Intention is distinct from capacity (Banks v Goodfellow) and from knowledge and approval.
• The presumption of intention and knowledge/approval arises with due execution but can be rebutted by evidence of mistake, lack of understanding, undue influence, or suspicious circumstances.
• Undue influence, fraud, or coercion can invalidate a will for lack of genuine intention or knowledge and approval.
• Privileged wills relax formalities but not the need for genuine intention to dispose of property on death.
• An attestation clause assists proof; in suspicious circumstances the court may require affidavits to establish intention and knowledge and approval.
• Rectification (AJA 1982 s 20) can correct clerical errors or failures to understand instructions but does not cure a lack of intention.
• Practical steps include reading over the will, using suitable attestation clauses, independent witnessing, and detailed attendance notes.

Key Terms and Concepts

• testamentary intention
• knowledge and approval
• undue influence
• attestation clause
• privileged will
• suspicious circumstances