Validity of the Will

Once you have obtained the Will you will need to check that it is valid. When a Will is prepared there are certain legal requirements and formalities that need to be followed to ensure that it is valid.

The person making the will (the testator or testatrix) must have been over 18 when they made the Will. The only exception to this is if the person is a soldier on actual military service, a mariner or a seaman at sea.

There are then five formalities that need to be followed when the Will is created:-

• The Will must be in writing – handwritten or typed, preferably in the same ink with no amendments

• The Will must be signed – usually at the end of the Will either a signature or a mark is acceptable provided this is explained. All pages of the Will should still be securely fastened together.

• An intention to create a Will – use of an attestation clause will demonstrate this. If there is no attestation clause then an affidavit may be required confirming the belief of the testator’s intention to create a Will.

• The testator must have signed or placed their mark on the Will in front of two adult witnesses – generally at the end of the Will.

• The two witnesses must sign or acknowledge the testator’s signature or mark. NB If any beneficiaries or their spouses or civil partners witness a Will then the beneficiary will not be entitled to any legacy due to them under the Will.

Any Will is presumed to be properly signed unless there is evidence to suggest otherwise. This is the known as the presumption of due execution.

A codicil which is a separate document that amends a Will must also be signed and witnessed in the same way to be valid. A valid codicil is read in conjunction with the Will.

There is further information on Will validity here. (link – How to make Sure my Will is Valid)

If you have any doubt over the validity of the Will then it is advisable to seek some legal advice on what steps can be taken to rectify any issues there may be or how else the will can be dealt with.

Wills are varied in both their content and the language used, which can sometimes make them difficult to understand. In addition, for a Will to be valid it must be created following certain formalities.

The person making the will (the testator or testatrix) must have been over 18 when they made the Will. The only exception to this is if the person is a soldier on actual military service, a mariner or a seaman at sea.

There are then five formalities that need to be followed when the Will is created to ensure that when the time comes it will be valid. The executors can hopefully then deal with the estate following the Will.

Will must be in Writing >>
Will must be Signed >>
There Must be an Intention to Create a Will >>
The Testator Must Sign or Acknowledge their Signature in the Presence of Two Witnesses >>
Witnesses must Sign, or Acknowledge the Testator’s Signature >>

>> Will must be in Writing

A Will can be handwritten or typed on any material, even the back of a cigarette packet would suffice, provided all the formalities are complied with. It is advisable to use one method, either hand written or typed as a combination of methods may cause confusion or lead others to believe the Will had been amended at a later point. It is also sensible to use the same ink if handwritten rather than different colours or the use of pencil and ink.

>> Will must be Signed

Usually the signatures on a will occur at the end of the Will and may be in a clause known as the attestation clause. The attestation clause in a Will explains the circumstances in which a Will is signed and witnessed.
The Testator must sign, or place their mark on the Will. If a mark is used it should be made clear that the Testator placed the mark. If a person had a disability that prevented them signing or leaving a mark, then someone else can sign on their behalf, but this must be done in the Testator’s presence and at their instruction. It should be indicated on the Will, usually in the attestation clause that this is what has happened.

If there is more than one page to the Will all pages should be secured firmly together at the time it is signed. This prevents pages from being lost and any potential tampering with the Will at a later point.

>> There Must be an Intention to Create a Will

The Testator must have the intention upon signing the document to create a Will. The use of the attestation clause is the best way of showing the testator’s intention to create a Will by placing their signature or mark upon it.

An attestation clause does not have to be included in a Will however it does make things easier when applying for the Grant of Probate. If there is no attestation clause then to obtain the Grant, the Court may require an affidavit, confirming that the Will was signed and witnessed correctly. If an attestation clause is present in the Will the Court are more likely to presume that the Will has been correctly signed and that the testator intended to create the Will.

>> The Testator Must Sign or Acknowledge their Signature in the Presence of Two Witnesses

The signature of the testator must be made in front of two independent witnesses who are both present at the time the testator signs. The witnesses should be over 18yrs and have full mental capacity. A blind person cannot witness a Will.

The witnesses can also acknowledge the testator’s signature but other requirements would need to be fulfilled to comply with the legal requirements.

An acknowledgment occurs when the witnesses did not actually see the testator sign the Will. The further requirements needed are that the Will has been signed before the witnesses are present; when the witnesses acknowledge the signature, they must have sight of it on the Will; and the testator must acknowledge that the signature already on the document is his through his words and conduct.

It is never advisable to have any beneficiaries or their spouses or civil partners witness a Will. If they do then the beneficiary will not be entitled to any legacy due to them under the Will.

>> Witnesses must Sign, or Acknowledge the Testator’s Signature

Once the Testator has signed or acknowledged their signature on the Will then each witness must sign or acknowledge the testator’s signature in the presence of the testator. Both witnesses do not have to sign or acknowledge in each other’s presence.

The testator must be mentally, as well as physically present for both witnesses’ signatures and must see each witness sign, unless they are blind. If the Testator were to lose mental capacity in between each witness signing then the Will would not be valid. Logistically it is far more sensible to have both witnesses and the testator together to sign and witness the Will in the correct order and thus ensure all the legal requirements are met.

Any Wills are presumed to be properly signed unless there is evidence to suggest otherwise. This is the known as the presumption of due execution.

A codicil which is a separate document that amends a Will must also be signed and witnessed in the same way to be valid. A valid codicil is read in conjunction with the Will.