All wills created in English and Wales have to comply with Wills Act 1837. This in principle creates three requirements. 

  • Does the person making the will understand what they are doing or have sufficient testamentary capacity. 
  • Do they have a general intention to make a will and is that intention to make this particular will.
  • Does the will comply with the formalities required under section 9 Wills Act 1837. 

Section 9 Wills Act 1837 says – no will shall be valid unless,

(a) it is in writing, and signed by the testator, or by some other person in his presence and by his direction and

(b) it appears that the testator intended by his signature to give effect to the will and

(c) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and

(d) each witness either (i) attests and signs the will or (ii) acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness.

Testamentary Capacity

This means that at the time of making or signing the will the will make maker sufficiently understood what they were doing. That is, the consequences of their actions and that they wanted to make this particular will at this time leaving gifts or assets to certain individuals. The solicitor making the will should have followed the principles in the case called Banks v Goodfellow (1870). 

In Writing

To comply with section 9 (a) Wills Act 1837 a will must be a written document. This does not mean that on occasions people have taken this to some interesting degrees. For example it is said that once someone wrote their will on the side of a cow. The main problem here was not so much confirming the will was in writing, but more who was going to look after the cow.

Attestation Clause

Mostly checking to see if the will is validly seeing if it has been signed by the will maker and witnessed or executed by two independent people. Does the will comply with Section 9 (c) and (d) of the Wills Act 1837.

Signed

A will maker needs to, if they are able to put pen to paper. This might be their signature, the initial, or even their attempt at writing their name. There are circumstances where they will makers fingerprint has been accepted.

Intention

Section 9 (b) Wills Act 1837 refers to the will makers intention.  

(b) it appears that the testator intended by his signature to give effect to the will. This means that the will maker understands the consequences of their actions and is certain that this is what they want to do.

Call our Contentious Probate team about resolving problems with the Will.

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