The requirements of a legally binding will
An introduction to the requirements of a legally binding will
For a will to be legally binding a number of requirements must be met. The requirements are complex and legal advice should always be sought before making a will. The reason for this is that if the requirements are not met the will is likely to be rendered invalid, which could result in the deceased’s assets being distributed other than in accordance with his or her wishes.
This article does not intend to be a substitute for legal advice but rather sets out briefly what the requirements of a legally binding will are. They are as follows:
Capacity
The testator (the person who made the will) must have been capable of making a valid will at the time when the will was made.
To be capable of making a valid will the testator must ordinarily be aged 18 years or over, although there are certain exceptions to this rule.
The testator must also be of sound mind, memory and understanding. Essentially, a person must know and appreciate what they are doing when they make a will.
If a person lacks the mental capacity to make a will an application to the Court of Protection can be made under the Mental Capacity Act 2005. However, the Mental Capacity Act 2005 will not assist where the will has already been made by a person of unsound mind.
Intention
The testator must have clearly intended to dispose of his or her property, in the manner set out in the will, on his or her death. If the will has been validly executed and the testator was of sound mind when the will was made such intention will normally be assumed.
Undue Influence, force and fraud
If a testator is unduly influenced (coerced or pressured) or forced into making the will, a Court may set aside the will in its entirety or in part. Similarly, a Court may set aside a will or part of a will if the execution of a will was obtained by fraud or if it was forged after the person’s death.
The format of the will
In the majority of cases the will must be in writing for it to be valid, although there are certain exceptions to this general rule. It must also be signed by or on behalf of the testator, and the signature must be made or acknowledged in the presence of 2 witnesses present at the same time.
A will can be written in pencil or ink or can be typed. There is no legal requirement that a will should be dated, unless the will appoints a guardian of a person under the age of 18, although it is good practice to do so.
Signature
In the majority of cases the will must be signed by the testator, or by some other person in his or her presence and by his or her direction. Normally the testator will sign the will at the end of the will, although this has not been a legal requirement since 1982. Where a will consists of several pages, it is not necessary for the testator to sign them all, so long as all the pages are attached at the time of execution of the will.
The testator should either sign his or her will or acknowledge his or her signature in the presence of 2 or more witnesses present at the same time.
Attestation
The testator should either sign his or her will or acknowledge his or her signature in the presence of 2 or more witnesses present at the same time. Each witness should then either attest and sign the will or acknowledge his signature, in the presence of the testator. It is good practice to use an attestation clause for this purpose.
Alterations
Any alterations made in a will after it has been executed will not be valid unless the alterations have themselves been duly executed.
Revocation
As a general rule, a will is revoked upon the marriage of the testator or if the testator enters into a civil partnership. A will can also be revoked by a testator executing a later will or codicil or by making a written declaration declaring his or her intention to revoke the will. A will can also be revoked by a testator intentionally destroying the will. Once a will has been revoked it will no longer be valid.