VALIDITY OF WILLS AND CODICILS
If grounds to challenge on CAPACITY, burden of proof on
REQUIREMENTS OF WILL: the PRs to prove capacity.
1. CAPACITY
2. INTENTION If in doubt when preparing the will should, follow ‘golden rule’
3. FORMALITIES in Kenward v Adams should ask a medical professional to
provide a written report confirming testator has testamentary
TESTAMENTARY CAPACITY capacity and ask doctor to witness the will. Solicitor should
record own view of testator’s capacity in a file note.
The test for testamentary capacity referred to as the
Banks v Goodfellow test. General rule: for the person who is asserting the will is valid to
The person who writes a will is called a testator. prove it, but if it is demonstrated that the will is formally valid
The person who deals with estate/affairs after their death and appears rational, burden of proof shifted to person
is called an executor. opposing it.
When the testator dies, the executor will make an
application to His Majesty’s Courts and Tribunals INTENTION, DURESS AND UNDUE INFLUENCE
Service Probate (HMCTS) for a grant of probate which
confirms that the will is valid and that the executor has When will is signed, testator must have both general and
authority to act. specific intention – i.e. intends to make a will and intends to
A gift under a will is called a legacy. make that specific will.
CAPACITY: Any will executed under duress / undue influence will be void.
To make a valid will, the individual must be 18+ and must
have mental capacity. Capacity defined in Banks v Burden of proof: usually for person asserting will valid to
Goodfellow: ‘soundness of mind, memory and prove it high threshold. There is no presumption of undue
understanding’. influence.
MENTAL CAPACITY TEST: Testators must understand:
1. fact they are making a will which will have effect on However, usually not necessary because a presumption of
their death – must have capacity at time of executing knowledge and approval arises.
will, but will can be valid if testator has capacity when
give instructions of will, even if they lose capacity by DOESN’T APPLY IN FOLLOWING:
time will is executed (Parker v Felgate). Testator blind/illiterate/not signing personally:
2. extent of their property, although not necessarily presumption of knowledge and approval doesn’t apply. HMCTS
recollecting every induvial item will require evidence to prove knowledge and approval before
3. moral claims they ought to consider , even if they they will issue a grant of probate. Usual to include a statement
decide to reject such claims and dispose of their at end of will stating that the will was read to the testator or
property to other beneficiaries. read by the testator who knew and approved the contents.
Cross-check with ss. 2 & 3 of the Mental Capacity Act Suspicious circumstances: e.g. if will is prepared by
2005: someone who is to be major beneficiary or close relative of
s.2: “… a person lacks capacity in relation to a matter if at the someone who will be. Executor or person putting forward the
material time he is unable to make a decision for himself in will must remove suspicion by proving testator did actually
relation to the matter because of an impairment of, or know and approve the will’s contents.
disturbance in the functioning of, the mind or brain…”
s.3: “a person is unable to make a decision for himself if he is A solicitor should not accept instructions from a third
unable: party to draw up a will for a testator. They should
(a) to understand the information relevant to the decision interview testator in the absence of third party to ensure that
(b) to retain that information any will drafted reflects testator’s wishes.
(c) to use or weigh that information as part of the process of
making the decision, or Force, fear, fraud, undue influence: Where testator with
(d) to communicate his decision (whether by talking, using capacity appears to have known and approved of contents of
sign language or other means)” will, any person who wishes to challenge will, or part, must
prove either force/fear, fraud or undue influence. Need to
If both tests met, then can conclude there was mental collect evidence from family, friends, carers. Such a serious
capacity, if one is and the other isn’t more digging allegation that a claimant who fails to substantiate claim will
needed. be penalised in costs.
Mental capacity presumed when: Mistake: Any words included without knowledge and
(1) T has such capacity at time of giving instructions approval of testator will be omitted from probate. Remember
(2) Will is prepared in accordance with instructions to distinguish between actual mistake vs misunderstanding.
AND
(3) At time of executing will, T was capable of understanding FORMAL REQUIREMENTS
and did understand T was executing a will.
Section 9 Wills Act 1837 - will must be:
1. in writing and signed by testator
BURDEN OF PROOF no restrictions on materials/types of wording
Golden rule: if testator lacks capacity at time of making Electronic will only held on computer not
will, will is void. permitted
Signature doesn’t need to be signature e.g. ‘your
loving mother’ is okay
1
,2. appears that testator intended by his signature to give right to renounce is lost if they take on grant or
effect to will intermeddle with estate. executor has right to
3. signature is made/acknowledged by presence of two of renounce being an executor by filing a signed statement
more witnesses present at the same time with Probate Registry. This is a permanent withholding of
4. each witness either (i) attests and signs the will or (ii) responsibility.
acknowledges his signature, in presence of the
testator. RESERVATION OF POWER = i.e. not administering
Electronic signatures not permitted. estate, but stay on as executor. When the executor may
Will not valid until both witnesses have signed. reserve power and sit out administration of estate, but can
Witnesses don’t need to sign in front of step in later if they wish to do so. EFFECT: can step in later if
each other, only testator they want to.
Not permitted to be video-witnessed
anymore since 31 January 2024. Covid
provisions expired.
ATTESTATION CLAUSE: presumption of due execution will arise
if “signed by the testatrix in our joint presence and
then by us in hers” It means that anyone challenging the
validity of the will on the ground that it was not validly
executed has burden of proving this.
If will does not contain attestation clause, then HMCTS will
require either:
(a) an affidavit of due execution
(b) a witness statement verified by a statement of truth,
from a witness or any other person who was present
during execution; or
(c) an affidavit of handwriting evidence to identify testator’s
signature
IF NOT, WILL REFER THE CASE TO A JUDGE =
TIME/MONEY
PERSONAL REPRESENTATIVES
Both executors & administrators may be referred to
generically as ‘personal representatives’.
EXECUTORS = individuals appointed within a will who
administer the estate and distribute the assets in accordance
with the will.
ADMINISTRATORS = individuals who administer the estate
and distribute the assets but have not been appointed within
the will.
THE APPOINTMENT OF EXECUTORS
Executors may be appointed:
1. Expressly / impliedly by will
2. By someone nominated by the will to appoint executors
through the chain of representation, or
3. By the court
If there is no valid appointment of an executor then any
person who is entitled under rules 20 or 22 of the Non-
Contentious Probate Rules 1987 may apply for a grant
of letters of administration (with will annexed) or if
there is no will, a simple grant of letters of
administration.
RENUNCIATION AND RESERVATION OF POWER
The rights of an executor appointed by a will end if they:
1. Die without having taken our probate:
2. Fail to appear on being cited to take our probate,
or
3. If they don’t want to act file a signed statement
with Probate Registry to renounce probate, BUT
2
, ALTERATIONS AND AMENDMENTS TO revocation is not made under undue influence will
revoked s.20 Wills Act 1837
WILLS
3. by destruction: by ‘burning, tearing, or otherwise
EFFECT OF ALTERATIONS MADE TO WILLS BOTH BEFORE destroying by the testator or by some person in his
AND AFTER EXECUTION presence and by his direction with the intention of
revoking the same’. Requires intention and physical
VALID ALTERATIONS: destruction, can’t just label as ‘will revoked’.
- If by accident, will not revoked.
Alteration made before will executed: valid subject to - If cannot find will, T is presumed to have destroyed it
testator intention i.e. did testator want to do that. with intent rebuttable presumption if
evidence.
Alterations made after will executed: - If destruction conditional, will not be destroyed until
1. Completion of a blank space valid condition is completed.
2. Attested alteration before or after the execution, signed - If 1st will destroyed because of 2nd will and 2nd will is
by the testator and two witnesses, initials next to the not valid, 1st will remains invalid.
alteration valid
4. by marriage/civil partnership: revocation is
I GIVE a legacy of £2,000 to my grandson Andrew. automatic s.18 Wills Act 1837, but note below!
NA TJ FP
Here: valid alteration, initialled and its effect is that grandson EFFECT OF MARRIAGE AND DIVORCE OF A TESTATOR
Andrew will not receive anything.
EXPECTATION OF MARRIAGE: Will is not revoked if T
INVALID ALTERATIONS – if unattested i.e. not signed makes will in expectation of marriage. Two elements must
properly be present:
BUT, an unattested alteration CAN be given effect if: (1) must be of a forthcoming marriage to a particular
(a) There is evidence that alteration is made on or prior person (not just expectation of marriage); and
to execution. Evidence may be the will itself, or (2) testator must intend for the will not to be revoked by the
affidavit from whoever drafted will, or witness. marriage.
(b) Will is later re-executed or confirmed by a later BOTH need to be evident in will i.e. mentioned in the will with
codicil. the person’s name and a wish for will not be to revoked.
If original wording is apparent i.e. readable, then the will DIVORCE: will is still valid but it is interpreted as if the
with the original wording is admitted to probate. Apparent = former spouse had died on the date of the decree absolute
original wording can be deciphered by natural means, by (i.e. finalising of divorce):
reading or holding up in the light but not infrared light. 1. Appointment of former spouse as executor / trustee is
ineffective
e.g. I GIVE a legacy of £2,000 to my grandson Andrew. 2. Gift in the will to former spouse fails
Strike through is unattested so invalid. However, as original 3. Spouse can still inherit if testator states they want spouse
gift cannot be deciphered, Andrew will inherit nothing. to explicitly inherit notwithstanding divorce.
I GIVE a legacy of £2,005 to my grandson Andrew. SEPARATION: If married T separates, but does not divorce,
£100 then T’s will remains unaffected.
Strike through and £100 is unattested so invalid. If there is
extrinsic evidence that can identify the original gift (e.g. copy
of the will without alteration), Andrew would receive the gift. If
THE INTERPRETATION OF WILLS
no evidence, then Andrew receives nothing.
EFFECT OF DIFFERENT TYPES OF GIFT
USE OF CODICILS
Specific gifts = particular item given to a person
Codicil: a testamentary instrument supplementing an existing
- Cost of transferring property of a specific gift is
will. A codicil republishes the will. This means the will is treated
responsibility of that beneficiary i.e. will have to pay
as if it has been executed on the date on which the later
for transfer of gift themselves and cost doesn’t come
codicil exercised.
out of residue unless indicated in will.
Codicils must comply with same requirements of will
Pecuniary legacy = a gift of fixed amount of money
under s.9 Wills Act.
General gifts = Not distinguished item e.g. 300 shares in
Can also act as reviving a will which has been previously
company, no indication of specific shares.
revoked.
Demonstrative gifts = general gift but p[aid from specific
REVOCATION OF WILLS fund e.g. £1000 to Joe paid from Halifax account
METHODS OF REVOCATION Residuary gift = Anything not despised of:
Revocation of a will can occur in 4 situations: - Often rest of estate left to residue
1. by a later will or codicil - Usually debts / expenses paid out of residue
2. by written intention to revoke: Where will is silent, legatee takes the property free
Where T with capacity expresses intention to revoke will from IHT which is borne by the residuary beneficiary.
in writing and complies with formalities of wills and
3
If grounds to challenge on CAPACITY, burden of proof on
REQUIREMENTS OF WILL: the PRs to prove capacity.
1. CAPACITY
2. INTENTION If in doubt when preparing the will should, follow ‘golden rule’
3. FORMALITIES in Kenward v Adams should ask a medical professional to
provide a written report confirming testator has testamentary
TESTAMENTARY CAPACITY capacity and ask doctor to witness the will. Solicitor should
record own view of testator’s capacity in a file note.
The test for testamentary capacity referred to as the
Banks v Goodfellow test. General rule: for the person who is asserting the will is valid to
The person who writes a will is called a testator. prove it, but if it is demonstrated that the will is formally valid
The person who deals with estate/affairs after their death and appears rational, burden of proof shifted to person
is called an executor. opposing it.
When the testator dies, the executor will make an
application to His Majesty’s Courts and Tribunals INTENTION, DURESS AND UNDUE INFLUENCE
Service Probate (HMCTS) for a grant of probate which
confirms that the will is valid and that the executor has When will is signed, testator must have both general and
authority to act. specific intention – i.e. intends to make a will and intends to
A gift under a will is called a legacy. make that specific will.
CAPACITY: Any will executed under duress / undue influence will be void.
To make a valid will, the individual must be 18+ and must
have mental capacity. Capacity defined in Banks v Burden of proof: usually for person asserting will valid to
Goodfellow: ‘soundness of mind, memory and prove it high threshold. There is no presumption of undue
understanding’. influence.
MENTAL CAPACITY TEST: Testators must understand:
1. fact they are making a will which will have effect on However, usually not necessary because a presumption of
their death – must have capacity at time of executing knowledge and approval arises.
will, but will can be valid if testator has capacity when
give instructions of will, even if they lose capacity by DOESN’T APPLY IN FOLLOWING:
time will is executed (Parker v Felgate). Testator blind/illiterate/not signing personally:
2. extent of their property, although not necessarily presumption of knowledge and approval doesn’t apply. HMCTS
recollecting every induvial item will require evidence to prove knowledge and approval before
3. moral claims they ought to consider , even if they they will issue a grant of probate. Usual to include a statement
decide to reject such claims and dispose of their at end of will stating that the will was read to the testator or
property to other beneficiaries. read by the testator who knew and approved the contents.
Cross-check with ss. 2 & 3 of the Mental Capacity Act Suspicious circumstances: e.g. if will is prepared by
2005: someone who is to be major beneficiary or close relative of
s.2: “… a person lacks capacity in relation to a matter if at the someone who will be. Executor or person putting forward the
material time he is unable to make a decision for himself in will must remove suspicion by proving testator did actually
relation to the matter because of an impairment of, or know and approve the will’s contents.
disturbance in the functioning of, the mind or brain…”
s.3: “a person is unable to make a decision for himself if he is A solicitor should not accept instructions from a third
unable: party to draw up a will for a testator. They should
(a) to understand the information relevant to the decision interview testator in the absence of third party to ensure that
(b) to retain that information any will drafted reflects testator’s wishes.
(c) to use or weigh that information as part of the process of
making the decision, or Force, fear, fraud, undue influence: Where testator with
(d) to communicate his decision (whether by talking, using capacity appears to have known and approved of contents of
sign language or other means)” will, any person who wishes to challenge will, or part, must
prove either force/fear, fraud or undue influence. Need to
If both tests met, then can conclude there was mental collect evidence from family, friends, carers. Such a serious
capacity, if one is and the other isn’t more digging allegation that a claimant who fails to substantiate claim will
needed. be penalised in costs.
Mental capacity presumed when: Mistake: Any words included without knowledge and
(1) T has such capacity at time of giving instructions approval of testator will be omitted from probate. Remember
(2) Will is prepared in accordance with instructions to distinguish between actual mistake vs misunderstanding.
AND
(3) At time of executing will, T was capable of understanding FORMAL REQUIREMENTS
and did understand T was executing a will.
Section 9 Wills Act 1837 - will must be:
1. in writing and signed by testator
BURDEN OF PROOF no restrictions on materials/types of wording
Golden rule: if testator lacks capacity at time of making Electronic will only held on computer not
will, will is void. permitted
Signature doesn’t need to be signature e.g. ‘your
loving mother’ is okay
1
,2. appears that testator intended by his signature to give right to renounce is lost if they take on grant or
effect to will intermeddle with estate. executor has right to
3. signature is made/acknowledged by presence of two of renounce being an executor by filing a signed statement
more witnesses present at the same time with Probate Registry. This is a permanent withholding of
4. each witness either (i) attests and signs the will or (ii) responsibility.
acknowledges his signature, in presence of the
testator. RESERVATION OF POWER = i.e. not administering
Electronic signatures not permitted. estate, but stay on as executor. When the executor may
Will not valid until both witnesses have signed. reserve power and sit out administration of estate, but can
Witnesses don’t need to sign in front of step in later if they wish to do so. EFFECT: can step in later if
each other, only testator they want to.
Not permitted to be video-witnessed
anymore since 31 January 2024. Covid
provisions expired.
ATTESTATION CLAUSE: presumption of due execution will arise
if “signed by the testatrix in our joint presence and
then by us in hers” It means that anyone challenging the
validity of the will on the ground that it was not validly
executed has burden of proving this.
If will does not contain attestation clause, then HMCTS will
require either:
(a) an affidavit of due execution
(b) a witness statement verified by a statement of truth,
from a witness or any other person who was present
during execution; or
(c) an affidavit of handwriting evidence to identify testator’s
signature
IF NOT, WILL REFER THE CASE TO A JUDGE =
TIME/MONEY
PERSONAL REPRESENTATIVES
Both executors & administrators may be referred to
generically as ‘personal representatives’.
EXECUTORS = individuals appointed within a will who
administer the estate and distribute the assets in accordance
with the will.
ADMINISTRATORS = individuals who administer the estate
and distribute the assets but have not been appointed within
the will.
THE APPOINTMENT OF EXECUTORS
Executors may be appointed:
1. Expressly / impliedly by will
2. By someone nominated by the will to appoint executors
through the chain of representation, or
3. By the court
If there is no valid appointment of an executor then any
person who is entitled under rules 20 or 22 of the Non-
Contentious Probate Rules 1987 may apply for a grant
of letters of administration (with will annexed) or if
there is no will, a simple grant of letters of
administration.
RENUNCIATION AND RESERVATION OF POWER
The rights of an executor appointed by a will end if they:
1. Die without having taken our probate:
2. Fail to appear on being cited to take our probate,
or
3. If they don’t want to act file a signed statement
with Probate Registry to renounce probate, BUT
2
, ALTERATIONS AND AMENDMENTS TO revocation is not made under undue influence will
revoked s.20 Wills Act 1837
WILLS
3. by destruction: by ‘burning, tearing, or otherwise
EFFECT OF ALTERATIONS MADE TO WILLS BOTH BEFORE destroying by the testator or by some person in his
AND AFTER EXECUTION presence and by his direction with the intention of
revoking the same’. Requires intention and physical
VALID ALTERATIONS: destruction, can’t just label as ‘will revoked’.
- If by accident, will not revoked.
Alteration made before will executed: valid subject to - If cannot find will, T is presumed to have destroyed it
testator intention i.e. did testator want to do that. with intent rebuttable presumption if
evidence.
Alterations made after will executed: - If destruction conditional, will not be destroyed until
1. Completion of a blank space valid condition is completed.
2. Attested alteration before or after the execution, signed - If 1st will destroyed because of 2nd will and 2nd will is
by the testator and two witnesses, initials next to the not valid, 1st will remains invalid.
alteration valid
4. by marriage/civil partnership: revocation is
I GIVE a legacy of £2,000 to my grandson Andrew. automatic s.18 Wills Act 1837, but note below!
NA TJ FP
Here: valid alteration, initialled and its effect is that grandson EFFECT OF MARRIAGE AND DIVORCE OF A TESTATOR
Andrew will not receive anything.
EXPECTATION OF MARRIAGE: Will is not revoked if T
INVALID ALTERATIONS – if unattested i.e. not signed makes will in expectation of marriage. Two elements must
properly be present:
BUT, an unattested alteration CAN be given effect if: (1) must be of a forthcoming marriage to a particular
(a) There is evidence that alteration is made on or prior person (not just expectation of marriage); and
to execution. Evidence may be the will itself, or (2) testator must intend for the will not to be revoked by the
affidavit from whoever drafted will, or witness. marriage.
(b) Will is later re-executed or confirmed by a later BOTH need to be evident in will i.e. mentioned in the will with
codicil. the person’s name and a wish for will not be to revoked.
If original wording is apparent i.e. readable, then the will DIVORCE: will is still valid but it is interpreted as if the
with the original wording is admitted to probate. Apparent = former spouse had died on the date of the decree absolute
original wording can be deciphered by natural means, by (i.e. finalising of divorce):
reading or holding up in the light but not infrared light. 1. Appointment of former spouse as executor / trustee is
ineffective
e.g. I GIVE a legacy of £2,000 to my grandson Andrew. 2. Gift in the will to former spouse fails
Strike through is unattested so invalid. However, as original 3. Spouse can still inherit if testator states they want spouse
gift cannot be deciphered, Andrew will inherit nothing. to explicitly inherit notwithstanding divorce.
I GIVE a legacy of £2,005 to my grandson Andrew. SEPARATION: If married T separates, but does not divorce,
£100 then T’s will remains unaffected.
Strike through and £100 is unattested so invalid. If there is
extrinsic evidence that can identify the original gift (e.g. copy
of the will without alteration), Andrew would receive the gift. If
THE INTERPRETATION OF WILLS
no evidence, then Andrew receives nothing.
EFFECT OF DIFFERENT TYPES OF GIFT
USE OF CODICILS
Specific gifts = particular item given to a person
Codicil: a testamentary instrument supplementing an existing
- Cost of transferring property of a specific gift is
will. A codicil republishes the will. This means the will is treated
responsibility of that beneficiary i.e. will have to pay
as if it has been executed on the date on which the later
for transfer of gift themselves and cost doesn’t come
codicil exercised.
out of residue unless indicated in will.
Codicils must comply with same requirements of will
Pecuniary legacy = a gift of fixed amount of money
under s.9 Wills Act.
General gifts = Not distinguished item e.g. 300 shares in
Can also act as reviving a will which has been previously
company, no indication of specific shares.
revoked.
Demonstrative gifts = general gift but p[aid from specific
REVOCATION OF WILLS fund e.g. £1000 to Joe paid from Halifax account
METHODS OF REVOCATION Residuary gift = Anything not despised of:
Revocation of a will can occur in 4 situations: - Often rest of estate left to residue
1. by a later will or codicil - Usually debts / expenses paid out of residue
2. by written intention to revoke: Where will is silent, legatee takes the property free
Where T with capacity expresses intention to revoke will from IHT which is borne by the residuary beneficiary.
in writing and complies with formalities of wills and
3
