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Lack Of Proper Formalities

Creating a valid will in England and Wales involves adhering to specific legal requirements laid out in the Wills Act 1837. In this video, Partner and Head of Private Wealth Disputes, Roman Kubiak, discusses the key elements necessary for a will to be legally valid.

Basic Requirements

For most individuals, the legal age to make a valid will is 18 or over. The fundamental requirements, as laid out in section 9 of the Wills Act 1837, for a will to be valid are:

  1. In Writing:The will must be in writing.
  2. Signature:It must be signed by the person making the will or by someone else in their presence and at their direction.
  3. Intent:The person must intend by their signature to create a valid will.
  4. Witnesses:Two or more independent witnesses must be present at the same time, and each witness must sign the will or acknowledge their signature in the presence of the testator.

 

Form of the Will

The will can be handwritten by pen or pencil, or typed. If written in both pen and pencil, the law presumes, unless evidence suggests otherwise, that the part in pencil is not intended to be included. The legal system strives to ensure a person’s wishes are honoured, as demonstrated in the case of Whiting v Turner (1903) 89 L. 71, where a will written on an eggshell was held to be valid.

 

Signature and Witnesses

A person’s signature need not be their usual one; it just needs to demonstrate an intent to be a signature for their will. An inky thumbprint has been accepted as a valid signature. Both witnesses must see the person signing or acknowledging their signature, and they must sign in the presence of the testator.

During the COVID-19 pandemic, the government temporarily relaxed laws, allowing wills to be witnessed remotely via video. However, if a witness is also a beneficiary under the will or a spouse or civil partner of a beneficiary, any gift to that person may fail.

 

Exceptions for Soldiers and Military Personnel

There are exceptions to the formal rules for soldiers and those in active military service who can make wills despite being under 18. This is laid out in section 11 of the Wills Act 1837. The case of Re Servoz-Gavin [2009] EWHC 3168 (Ch), in which a ship’s radio officer told a family member he wanted to leave his estate to his aunt in case he died, illustrates how an oral will can be valid.

 

Conclusion

While there are exceptions to the formal requirements, most wills must adhere to the strict guidelines outlined by the Wills Act 1837. Understanding these formalities is crucial to ensuring the validity of a will.

If you have concerns over a will or are facing a will dispute contact us to speak to one of our lawyers.


Key contact

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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