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24 October 2016 | Comment | Article by Roman Kubiak TEP

DIY wills – better call a professional


Many of us know that having a valid will is important.

With this in mind, some people attempt to make one themselves without seeking legal advice. Although a DIY will can be tempting, this can cause problems later.

Issues with the will may result in future disputes between the beneficiaries. Not only will this mean that your wishes may not necessarily be followed but it could result in legal costs depleting the value of your estate.

Furthermore, if a will is not executed in accordance with strict legal requirements then it will not be valid.

These requirements are contained in section 9 of the Wills Act 1837 which states that:

“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), but no form of attestation shall be necessary.”

The first requirement of section 9 of the Act is that the will must be in writing. The Act does not stipulate that the will must be written in paper and can theoretically be written on anything, provided that it demonstrates that the testator intended the writing to amount to a will. For example, in the case of Hodson v Barnes (1926) a will written on an eggshell was held to be valid.

Whilst the Act does not stipulate what language must be used, case law suggests that it must be written in a language which can be understood. In the case of Kell v Charmer (1856) a will was written in code. The testator worked in a jeweller’s shop where he used a specific code of communication. It was only used in this firm but, because it could be understood, it was valid for the purposes of section 9.

The second requirement is that the will needs to be signed and the testator must intend (by their signature) to give effect to the will. What amounts to a ‘signature’ Is not defined and, for example, an inky thumbprint was held to be sufficient in the case of Re Finn (1935) 52 TLR 153.

It is also necessary for the testator’s signature to be witnessed or acknowledged by two or more people. The witnesses must sign the will in the testator’s presence (but not necessarily in the presence of each other).

These simply set out the formal requirements for a valid will and do not touch upon questions of mental capacity or fraud, for instance. However, as can be seen, there are strict rules which need to be satisfied in order for a will to be valid.

Author bio

Roman Kubiak is a partner and head of the market leading Contested Wills, Trusts and Estates team.

He advises across the whole spectrum of private wealth disputes, with a particular focus on high value, complex and cross-border disputes including: trust disputes, breach of trust claims and applications to remove trustees; will disputes, particularly those with an international element; claims under the Inheritance (Provision for Family and Dependants) Act 1975; and claims for equitable relief under proprietary estoppel, constructive trusts and resulting trusts.

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