Learning Outcomes
After studying this article, you will be able to identify when a will or codicil is legally valid, explain the prescribed formalities for execution, distinguish the requirements for testamentary capacity, and recognise common grounds on which the validity of a will or codicil can be challenged. You will also be equipped to apply these rules to assessment-style scenarios and typical client queries on validity.
SQE2 Syllabus
For SQE2, you are required to understand the essential requirements for a valid will or codicil, the foundational legal principles, and practical considerations for ensuring and challenging validity. In your revision, focus especially on:
- the strict formalities for execution under the Wills Act 1837
- the requirements and timing for testamentary capacity
- the legal meaning of 'knowledge and approval'
- the definition and legal effect of codicils
- how and when validity may be challenged, and typical reasons for invalidity or rejection by the probate registry
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 is the minimum number of witnesses required for a valid will under the Wills Act 1837?
- True or false? A will executed under duress will be regarded as valid if all other formalities are present.
- What is the main legal test for testamentary capacity, and when must it be satisfied?
- How does a codicil affect an existing valid will?
Introduction
Ensuring the validity of a will or codicil is critical for any legal practitioner advising on wills or the administration of estates. The formal requirements are strictly enforced, with failure rendering the document void and subjecting the estate to intestacy provisions. You must be able to identify and apply the requirements for valid execution, capacity, and intention, and understand how to identify and resolve potential validity issues for your client.
Formalities for a Valid Will
A will must be executed in strict compliance with the requirements of the Wills Act 1837. Deviation from these formalities will usually mean the will is void.
Key Term: will
A legal document by which a person sets out how their assets are to be distributed on their death.
Execution Requirements
To be legally valid, a will must:
- be in writing (handwritten, typed, or printed all suffice)
- be signed by the testator (or by someone else in their presence and at their direction)
- be intended by the testator, by their signature, to give effect to the will
- be signed or acknowledged by the testator in the presence of at least two witnesses present at the same time
- be attested and signed by each witness in the testator’s presence (but not necessarily in the presence of each other)
Key Term: attestation
The act by which a witness confirms they have observed the testator sign or acknowledge the will.
Witness Qualification and Impact
Anyone can act as a witness if capable of understanding the act. However, if a beneficiary or their spouse acts as a witness, any gift to that beneficiary is void, but the rest of the will is unaffected. A will witnessed by only one witness is invalid.
Codicils
A codicil is a document executed with the same formalities as a will and serves to alter, add to, or confirm a prior valid will. A codicil republishes the will, giving the will the date of the codicil for probate purposes.
Key Term: codicil
A separate testamentary document, executed with the same formalities as a will, which modifies or confirms an earlier will.
Testamentary Capacity
The test for capacity is whether the testator:
- understands the nature of making a will and its effects;
- understands the extent of their property;
- comprehends and appreciates the claims to which they ought to give effect;
- is not affected by any disorder of the mind that influences the disposition.
Key Term: testamentary capacity
The mental ability required to make a valid will; as set out in the Banks v Goodfellow test.
Capacity must be present at the time of execution, though practical exceptions (such as the rule in Parker v Felgate) exist for certain instructions followed by later valid execution.
Knowledge and Approval
In addition to capacity, the testator must know and approve the content of the will or codicil. This is usually presumed when the testator signs a properly executed document, but may be rebutted in cases of suspicious circumstances, notable errors, or evidence of fraud or undue influence.
Key Term: knowledge and approval
The testator’s understanding and acceptance of the content of the will or codicil at execution.
Duress, Undue Influence, and Fraud
A will or codicil is invalid if the testator was subject to fraud, undue influence, or duress. Genuine persuasion does not amount to undue influence—only coercion will suffice.
Key Term: undue influence
Improper pressure or coercion depriving the testator of free will in making their will or codicil.
Worked Example 1.1
A client’s parent executed a professionally drafted will witnessed by her two neighbours. At the time, the client’s sibling was present in the same room, objecting to the contents, but the parent insisted on proceeding. The will gives everything to charity. After death, the sibling alleges the will was invalid because the parent had “severe memory problems” and was “harassed into signing.” How should you approach the question of validity?
Answer:
Start by checking the formalities: the will is in writing, signed, and duly witnessed, so execution is valid. The next issue is capacity—evidence of memory problems will require assessment of whether the parent met the Banks v Goodfellow standard. Finally, unless there is convincing evidence of coercion, the fact that the parent insisted on proceeding weighs against any finding of undue influence. The will is likely valid unless capacity is disproved or coercion is clearly established.
Worked Example 1.2
A testator writes a will in hospital with the assistance of a solicitor, but one of the nurses acts as a witness. The will leaves a significant legacy to that nurse. Is this legacy valid?
Answer:
The nurse is a competent witness, so witnessing is valid. However, because a beneficiary or their spouse who witnesses a will cannot take under the will, the gift to the nurse is void, though the rest of the will remains effective. The other gifts are unaffected.
Exam Warning
Where a will is challenged on grounds of capacity, knowledge and approval, or undue influence, the burden of proof may shift. If validity is genuinely in question, always check for contemporaneous medical or legal evidence to support or rebut capacity and intention at the time of execution.
Intestacy Consequences
If a will is wholly or partially invalid, the assets affected will pass according to the intestacy rules. This applies to the entire estate if the will is void, or to any gift or share that fails.
Key Point Checklist
This article has covered the following key knowledge points:
- A valid will or codicil must comply with all Wills Act 1837 formal requirements for execution.
- The will or codicil is invalid if the testator lacks testamentary capacity or does not know and approve its content.
- Each witness must observe the testator sign or acknowledge the will and must sign for attestation.
- Beneficiaries (or their spouses) who witness a will or codicil cannot take any benefit under it.
- A codicil must meet the same formalities as a will and has the effect of republishing the will.
- A will or codicil made under duress, undue influence, or fraud is invalid.
- Any share or gift invalid for these reasons will pass by intestacy.
Key Terms and Concepts
- will
- attestation
- codicil
- testamentary capacity
- knowledge and approval
- undue influence