Wills and Intestacy - Validity of wills and codicils

Learning Outcomes

This article covers the validity of wills and codicils in probate practice, including:

• identify and apply the Wills Act 1837 s.9 execution requirements, including the role and competency of witnesses, attestation clauses, and what amounts to “presence” and “acknowledgment” at signing
• explain the legal effect and use of codicils, including republication and the practical impact on interpretation, ademption and dating
• distinguish testamentary capacity (Banks v Goodfellow) from Mental Capacity Act concepts, apply the “golden rule”, and handle burden and standard of proof on capacity disputes
• analyse “knowledge and approval”, recognise suspicious circumstances, and set out appropriate evidential steps (reading-over, special attestation clauses, probate affidavit practice)
• differentiate persuasion from coercion, and advise on duress, undue influence and fraud, including evidential challenges and costs risks
• spot common probate pitfalls (beneficiary-witness gifts, staple/pin holes, unexecuted alterations/obliterations, undated wills), and know how the probate registry responds (NCPR rules and affidavit practice)
• advise on intestacy consequences of full or partial invalidity, including how failed gifts or appointments are treated

SQE2 Syllabus

For SQE2, you are required to understand the validity of wills and codicils in probate practice, including execution formalities, testamentary capacity, knowledge and approval, codicils, and the grounds on which validity may be challenged, with a focus on the following syllabus points:

• strict formalities for execution under the Wills Act 1837 (s.9), attestation clauses and probate presumptions
• testamentary capacity and timing (Banks v Goodfellow; Parker v Felgate)
• knowledge and approval: presumptions, suspicious circumstances, and proof
• codicils: formalities, republication, and interaction with existing gifts
• grounds to challenge validity: duress, undue influence, fraud, and probate practice under the NCPR

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 minimum number of witnesses required for a valid will under the Wills Act 1837?
2. True or false? A will executed under duress will be regarded as valid if all other formalities are present.
3. What is the main legal test for testamentary capacity, and when must it be satisfied?
4. 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 signature.

These requirements are interpreted strictly:

• “Presence” means the witness must be capable of seeing (and actually observe) the testator sign or acknowledge the signature. A witness who cannot observe the act (for example, a blind witness) will not be competent for this purpose.
• The testator may acknowledge a signature already made, but that acknowledgment must occur while both witnesses are present together.
• Any person (other than a beneficiary or their spouse/civil partner who wishes to preserve their gift) can witness provided they understand the act of witnessing and can observe the signature.

An attestation clause (for example, “Signed by the testator in our joint presence and then by us in theirs”) raises a presumption of due execution. If absent or defective, the probate registry may require affidavit or witness statement evidence to prove execution.

Witness Qualification and Impact

Anyone can act as a witness if capable of understanding the act. However, if a beneficiary or their spouse/civil partner 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.

Two further practical points often assessed:

• the witness need not know they are witnessing a will; they must only observe the signature/acknowledgment
• signatures need not be full names; marks and forms such as “Your loving mother” have been treated as valid signatures where intended to give effect to the will and to identify the testator

Probate Presumptions and Affidavit Practice

Where the attestation clause is present, a presumption of due execution will usually suffice. If there is no attestation clause or there are doubts (for example, the testator’s signature appears away from the end, or alterations seem unexecuted), the probate registry will typically require an affidavit of due execution under the Non-Contentious Probate Rules (NCPR), often from an attesting witness. Where the will is undated, affidavit evidence of the execution date may be required. If the testator was blind or illiterate or did not sign personally, an affidavit of knowledge and approval will be called for unless a suitable special attestation clause was used.

Exam Warning

The temporary COVID-era permissive regime that allowed video-witnessing of wills ended on 31 January 2024. As at 2025, witnesses must be physically present with the testator when witnessing or when the signature is acknowledged. Always check the most current position before advising.

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.

Republication can have practical effects:

• it can cure problems linked to the will’s date (for example, changing the “speaks from” date for construing gifts of people or property)
• it may affect ademption: a codicil can mean that a specific gift is read as if made at the codicil date, potentially capturing replacement items acquired after the original will date
• it refreshes presumptions of due execution and knowledge and approval as at the codicil date

When deciding whether to use a codicil or a new will, consider complexity and risk. Simple additions and confirmations often suit codicils; substantial reworking usually warrants execution of a new 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.

The common-law Banks v Goodfellow test is the applicable standard for wills. Although the Mental Capacity Act 2005 governs many decisions for persons lacking capacity, case law confirms Banks v Goodfellow remains the relevant test for testamentary capacity. In practice:

• contemporaneous notes of the solicitor’s meeting and any medical opinion carry significant weight
• the “golden rule” recommends obtaining a medical assessment, and ideally having the doctor witness the will, where the testator’s capacity may be questioned due to age or illness
• capacity is judged at the time of execution; however, the rule in Parker v Felgate can validate a will where the testator had capacity when giving instructions and later, while lacking full capacity, executes a will that accurately reflects those earlier instructions

Burden of proof often rests with the propounder of the will, but if the will is rational and duly executed, a presumption of capacity arises; challengers must adduce evidence to displace it.

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.

Suspicious circumstances may include:

• the will being prepared by a major beneficiary or someone closely connected to them
• the testator being vulnerable (illiterate, blind, severely anxious) without independent explanation or reading-over
• substantial, unexpected departures from what the testator had long said they intended

In such cases, the propounder must prove the testator actually knew and approved the contents. Good practice includes reading the will over to the testator in full, using a special attestation clause where appropriate (for example, for blind or illiterate testators), and documenting the explanations provided. On an application for a grant, the probate registry may require an affidavit of knowledge and approval under the NCPR.

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.

• Duress involves threats or violence undermining free decision-making.
• Fraud includes deceit about facts (for example, falsely telling the testator a person is dead, inducing disinheritance).
• Undue influence is harder to prove in probate than in lifetime transactions; the standard requires coercion, not merely influence or dependence. Allegations unsupported by strong evidence risk adverse costs.

Where such allegations are raised, courts expect detailed, credible evidence from those with knowledge of the testator’s circumstances (family, carers, professionals). Findings of undue influence are rare, but they do occur where the facts demonstrate domination of the testator’s will.

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/civil partner 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.

Worked Example 1.3

A will bears no attestation clause. One witness has died; the other cannot be traced. The registrar raises concerns about due execution. What evidential steps are available to secure probate?

Answer:
The presumption of due execution does not arise without an attestation clause. The probate registry may accept other proof, such as an affidavit from someone present at execution, handwriting evidence confirming the testator’s signature, or other circumstances consistent with due execution. If evidence is sufficient, probate may be granted; otherwise, the will may be refused.

Worked Example 1.4

A testator gave detailed instructions for a will while clearly capacitated. Weeks later, the will was executed in line with those instructions but the testator’s mental state had deteriorated. Is the will valid?

Answer:
The rule in Parker v Felgate may validate the will if the testator had capacity when giving instructions, and the will executed later accurately reflects those instructions. Provided execution formalities were met, the will can be admitted despite subsequent deterioration.

Worked Example 1.5

The original will lodged for probate shows heavy scribbles over the name of a legatee, making it illegible. No initials appear next to the change and there is no memorandum. What is the probate position?

Answer:
An obliteration made after execution that is not duly executed will not have effect unless the original words are not apparent. If the original words cannot be made out by natural means, the obliteration operates to revoke the affected words, leaving a blank. If the original words can be discerned, the unexecuted alteration is ignored and the original text stands.

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. Be alert to probate registry practice under the NCPR, including requirements for affidavits covering due execution, knowledge and approval, and the “plight and condition” of the will where alterations, staple marks, or damage are visible.

Practical Notes on Alterations and Codicils

Alterations made after execution are ineffective unless executed in accordance with the Wills Act requirements, or unless the original words are not apparent (in which case the obliteration can revoke those words). Minor interlineations are permissible only if properly signed/initialled by the testator and witnessed in the manner required for wills (or covered by a signed memorandum referring to all alterations). If there is doubt whether changes pre-date execution, probate will treat unsigned alterations as post-execution and ignore them unless proved otherwise.

Codicils should be used where the testator wishes to add gifts or tweak provisions without replacing the whole will. They must be duly executed and should reference the will they modify. Be aware that a codicil republishing the will can affect how gifts are construed (for example, identifying people by status at the codicil date rather than the original date).

Probate Registry Practice: Plight and Condition

A will that appears mutilated (for example, with torn corners, staple or pin holes, missing clips, or cut-out sections) or contains unsigned alterations will trigger further inquiries. The registry may require an affidavit explaining the will’s plight and condition, how and when attachments were removed or added, and whether alterations pre- or post-date execution. Unexecuted changes are presumed post-execution and will be disregarded unless clear evidence proves otherwise. If an attempted revocation by destruction is suspected, an affidavit will be needed to address whether both the act and intention to revoke were present.

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. Typical scenarios:

• a void gift (for example, beneficiary-witness) falls into residue if there is a residuary clause, or passes by intestacy if the void gift was of residue
• an invalid will (for example, due execution fails) results in total intestacy
• failure of a will appointment (for example, former spouse appointed as executor, then divorce) may require grant procedures consistent with the NCPR to appoint an administrator, while property continues to pass under the will unless otherwise revoked

These outcomes emphasise the importance of compliance with formalities and careful drafting to avoid unintended intestacy.

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/civil partners) 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.
• Probate registry practice under the NCPR may require affidavits addressing due execution, knowledge and approval, the date, and the plight and condition of the will where issues are apparent.
• Post-execution alterations are ineffective unless duly executed or the original words are not apparent; otherwise, treat alterations as post-execution and disregard them.

Key Terms and Concepts

• will
• attestation
• codicil
• testamentary capacity
• knowledge and approval
• undue influence