Legal formalities of making a will

Formalities of making a will: S. 9 Wills Act 1837

A will is not valid if the required legal formalities set out in section 9 of the Wills Act 1837. If a will is not valid, the deceased’s estate will pass under the statutory rules of intestacy and not under the terms of the will.

There are three main formalities required in making a valid will and it is important that these are followed, otherwise your will be considered invalid.

What are these formalities?

The formalities required under the Wills Act are simple but important, and help to minimise the risk of fraud, or of someone being forced to make a will under duress.

The will must be in writing

The will must be in writing – preferably written in ink, typed or printed to avoid potential ambiguities or disputes after the death of the testator.

The only exception is in the case of ‘Privileged Wills,’ which can be oral. Privileged wills are wills made informally by a testator who has privileged status. Privileged status is granted to soldiers, mariners or seamen who are in ‘active military service’. Privileged wills may arise in circumstances where a soldier is mortally wounded in combat, and makes a statement or oral disposition of their wishes as to who to leave assets when they die.

The will must be signed by the testator

Normally, the testator signs the will with their usual signature. However, a mark made by the testator on the will is sufficient to validate the will – provided it is intended it to be their signature and that the mark is meant to execute the will. Circumstances where a mark may be used include where the testator is illiterate or physically unable to sign, and uses their thumbprint to execute the will. This is sufficient to satisfy the legal formality.

In some cases, the testator may only give a partial signature because they are too weak to complete their usual signature. Again, the will would still be considered valid as long as the testator intended that the mark or the signature was intended to execute the will. However, where the signature is not complete, or there are concerns as to the way the will was executed or made, external evidence (eg. an affidavit of due execution) should be given by the attesting witnesses or the solicitor/lawyer in attendance at the execution of the will. The evidence of a doctor may also be required.

Witnesses

There must be two witnesses who attest to the testator’s signature. The witnesses must first actually witness the testator executing the will; and must then sign the will in the presence of the testator. If this does not happen the will is considered invalid. It is, therefore, important that the witnesses and the testator are all present at the same time at the execution of the will. However, it is not necessary for the witnesses to actually know the contents of the will.

It is crucial to note the restrictions on those who can witness a will. Beneficiaries under the will should not be witnesses, and those married to a beneficiary must not witness a will. If any beneficiary witnesses the signing of the will, that person effectively relinquishes their entitlement under the will (section 15 Wills Act 1837). Likewise, if a person married to a beneficiary witnesses the will – the beneficiary will not take their entitlement under the will’s terms. However, the will itself will not be invalid.

Each witness must also be capable of attesting the will at the time the will was executed. A minor can witness a will, but not a young child since they will not be capable of understanding the importance of witnessing the will’s execution. A blind person will not be an appropriate witness to the will’s execution. A person who is very drunk or of unsound mind will also not be capable of attesting to the will.