The majority of the population has not made a will and, of those who have, do-it-yourself wills are not uncommon. Unfortunately, making a will is not as easy as often perceived, due to the strict formalities required by law.
So what are the key formalities?
Who can make a will?
First, it is necessary to ascertain who can actually make a will.
The short answer is pretty well anyone except for those under the age of 18 and those who (even if age 18 or over) lack testamentary capacity. Testamentary capacity in simple terms means that the person knew what he/she was doing when he/she made the will. Many cases heard in the UK courts revolve around arguments by relatives who seek to challenge the validity of a will on the basis the testator didn’t know what he/she was doing when the will was made.
What are the key formalities?
The relevant formalities are set out in the Wills Act 1837 (as subsequently amended). Where a will is found to be invalid it cannot be admitted to probate and its terms are then unenforceable and the intestacy provisions would apply. This is not at all uncommon where do-it-yourself wills are involved.
The four key requirements
There are in essence four important requirements:
- The will must be in writing and signed by the testator;
- The testator must have intended to give effect to the will;
- The testator’s signature must be made in front of two witnesses who are present at the same time; and
- Each witness must sign the will in the presence of the testator.
The will must be in writing and signed by the testator
A verbal will is invalid. Verbally promising to leave something to someone on death is unenforceable. However, this does not mean that literally the testator must write out the will in his own hand. His will can be typed out (or typed out by someone else at the testator’s direction). Any language may be used and the will does not need to be written on paper!
It is not a strict requirement that the testator should sign the will at the end of it but this is good and normal practice.
The testator intended to give effect to the will
Broadly, the testator knew he/she was making a will and intended that it should be effective and understood what provision to the various beneficiaries he/she was making (and whom was being excluded) by executing the will.
The testator’s signature is made in front of two witnesses who are present at the same time
When the testator signs the will he/she must do so in front of two witnesses who are present at the same time. The witnesses do not need to know that the document being signed is in fact a will but this will normally be the situation.
Most people can act as a witness including, interestingly, a person under age 18 (who cannot make a will as stated above), but a person of unsound mind cannot act as a witness (nor can a person who is drunk at the time!). It is also important to note (a fact not commonly understood) that acting as a witness means that any legacy left in the will to the witness becomes invalid (i.e. the witness does not inherit the legacy).
Each witness signs the will in the presence of the testator
The testator must sign before either witness signs but each witness must sign in the presence of the testator although not necessarily in front of the other witness.
Practical Tip:
It is likely to be cheaper in the long run to pay a professional to prepare a will.
