Wills and Administration of Estates
Is the will valid?
Requirements for a valid will: The testator must have:
Capacity
Intention
Complied with the formalities of the Wills Act 1837
Capacity To be valid, the testator must have had capacity to create the will.
The testator must be over 18, and;
Must have had the requisite mental capacity per the test in Banks v Goodfellow:
The testator must have “soundness of mind, memory and understanding”. i.e. the
testator must have understood:
The nature of his act and its broad effects
o i.e. that he is writing a will and he knows what it means.
The extent of his property;
The moral claims he ought to consider.
o E.g. family members.
o Testator must have considered these, but it is open to him to then
ignore these.
The person who puts forwards a will has to prove ALL necessary elements (e.g mental capacity)
There is a PRESUMPTION that the testator had capacity if they show NO sign of mental confusion
o HOWEVER, if there is anything to put his capacity in doubt, the PR’s will have to prove
capacity – burden of proof.
GP should make judgement as to capacity – better to have as witness to will
Intention The testator must have intended to create a will i.e.:
The testator must have general intention
i.e. he must have intended to make a will as opposed any other sort of document.
The testator must have specific intention
i.e. he must have intended to make the particular will in question; the testator must
know and approve its contents.
It is presumed that the testator intended to create a will if he:
o Has capacity
o Executed the will having read it.
UNLESS:
1. The testator is blind or illiterate, or someone else signed it on his behalf.
In such circumstances the probate registrar will require evidence to
demonstrate intention.
E.g. a statement at the end of the will confirming that the will was read over to
the testator, or read by the testator, and they knew and approved its contents.
2. There are “suspicious circumstances” surrounding the drafting of the will e.g. if the will
has been prepared by someone who is a major beneficiary under the will.
o Person putting forward the will must prove testator did actually know and approve
the will’s contents
NB – SRA Conduct issues: solicitors must act with:
Honesty (Principle 4)
Integrity (principle 5) and
In the best interest of their clients (Principle 7)
Solicitors must not abuse position by taking advantage of clients
1
, Solicitors must not act if best interests of client clash with own interests
If gift made to solicitor/member of family is ‘significant’/ ‘of significant value’→ client needs to seek
independent legal advice and solicitors/firms should refuse to act:
‘Significant’:
Anything worth MORE THAN 1% of net estate
Anything likely to become more valuable in the future e.g. shares
Anything which is more valuable than relationship with the deceased justifies
Preventing some/all of will from being admitted
Undue If a testator has capacity and intention to challenge the will a person must prove INVALIDITY on the
influence grounds of UNDUE INFLUENCE or MISTAKE.
and Undue Influence
mistake o A will, or parts of a will will be invalid if it was created as a result of:
Force or fear: of actual or threatened injury.
Fraud: e.g. being misled by some pretence
Undue influence: where the testator’s freedom of choice was overcome by intolerable
pressure, even though his judgement remained unconvinced.
o Person who seeks to challenge a will must prove this is the case – never presumed – but
difficult to prove because died.
CPR – encourages info – access to GP and hospital records – may identify as particularly
vulnerable and persuadable.
Ask questions to solicitor how was will executed – who else was there? Under obligation
to reveal that info
o NB: Requirement of proof is different for gifts in a will and lifetime gifts.
Relationship of trust and confidence
If a donor makes a lifetime gift which requires explanation (e.g. because it is large in
comparison to the donor’s other assets), there is a PRESUMPTION OF UNDUE INFLUENCE.
I.e. the gift will fail unless the recipient can provide the court with a satisfactory
explanation as to why the gift was made.
Mistake
o Any words included without the knowledge and approval of the testator will be omitted from
probate.
o DOES NOT cover situations where the testator misunderstood the meaning of the words used
will remains valid.
o Court may interpret words to give effect to testator’s intention
Formalities s9 of the Wills Act 1837
A will must be:
(a) In writing, and signed:
By the testator or
By some other person in his presence, and under his direction.
(b) It must appear that the testator, by signing the will, intended to give effect to the will.
(c)The signature must be made or the testator must acknowledge that the signature is his in the
presence of 2 or more witnesses.
If 1 of the 2 witnesses DOES NOT see the actual signing or the acknowledgement invalid
will
Not necessary for the witnesses to know the contents of the document.
(d) Each witness must, in the presence of the testator, either:
Attest (i.e. confirm that they believe that the signature is that of the testator) and sign the
will.
Or acknowledge their signature (i.e. acknowledge that it is their signature that appears on
the document).
May just be consciousness of what is going on (Brown v Skirrow)
Wills normally include an attestation clause that the s9 formalities were observed, raising a
presumption of due execution
2
, Witnesses:
o Must be capable of understanding the significance of being a witness.
o Executor can be witness
o If the WITNESS, or THEIR SPOUSE, are beneficiaries under the will, the will remains VALID,
BUT ANY GIFTS to the witnesses will FAIL/lose their entitlement (Wills Act 1837 s15)
Beneficiaries, those married to/civil partners of beneficiaries should NOT be
witnesses or gifts will fail
EXCEPTION
Wills made on actual military service/by mariner/seaman at sea is VALID IN ANY FORM (incl. Oral
statements)(s.11)
ONLY testator’s intention to dispose of property after death required
Remote For wills made between 28 September 2020 and 31 January 2024, ‘presence’ includes means of video
Witnessing conference or other visual transmission
No longer possible now
HOWEVER, signature requires ACTUAL presence of testator
Points for remote witnessing:
Witnessing pre-recorded videos is NOT permitted – the witnesses must see the will being
signed in real-time
The witnesses and testator can all be at different locations, on a three-way link, or two can
be physically together with one at a remote location
The testator must physically sign the will (or acknowledge an earlier physical signature).
Electronic signatures are NOT permitted. The testator will date the will with the date of
signature
The will must then be taken or posted to the witnesses
The witnesses must physically sign the will in the virtual presence of the testator, and, if
possible, in the virtual or physical presence of each other
The witnesses will sign with the date on which they are signing, which may be different from
the date on which the testator signed and the date on which the other witness signs. The
execution process is NOT complete until EVERYONE has signed
Will is NOT valid UNTIL BOTH witnesses sign it → if testator dies before all signatures added, will CANNOT
take effect
Will is valid UNLESS proof exists that formalities not observed
If will includes clause reciting that s.9 formalities observed, presumption of due execution is raised
(‘attestation clause’)
E.g. “Signed by the testator in our joint presence and then by us in his/hers.”
If will has NO attestation clause, judge/registrar must require:
o Affidavit/witness statement verified by statement of truth from a witness/any other
person present during execution; or
o Affidavit of handwriting evidence to identify testator’s signature; or
o Case to be referred to a judge
3
, Revocation and alteration
Revocation By a later valid will or codicil (both impliedly or expressly) s 20 Wills Act 1837
o NB: A codicil is an ADDITION or SUPPLEMENT to a will.
o Codicil will either be expressly revoked by express revocation clause or by implication if
previous will is inconsistent with current will
o Revocation may be invalid if it is conditional upon a particular event which doesn’t
happen
By marriage or civil partnership:
o s18; automatically revoked on marriage or Civil Partnership AFTER executing will
o s18(3) - DOES NOT apply where will was made when testator was expecting to marry &
DID NOT intend the will to be revoked.
UNLESS will states that it is conditional on marriage taking place, it will take
effect UNLESS expressly revoked take effect even if marriage does not
happen
o s18A: post-divorce will is still valid – but the gift to the ex-spouse is INVALID – they are
treated to have died on divorce date so gift also fails
Full physical destruction with intention to revoke – in presence of testator and by his destruction
(s20)
By burning, tearing or otherwise destroying the same.
By the testator or
In the presence of the testator by the testator’s direction with the intention of revoking the
will.
This requires both physical destruction and intention to revoke in testator’s presence and by
his direction.
NB: Physical destruction is necessary. Crossing out or simply writing the words
“revoked” across the will is not sufficient.
Intention is necessary. Accidental destruction will not result in the will being revoked.
Destruction by another in a different room will NOT revoke the will even if it is at the
testator’s direction.
Partial destruction will only be taken to revoke the entire will if it destroys a vital part, e.g
the signature
Alteration Any alteration must be properly executed like the original (initials of testator and witnesses in
margin would suffice): a codicil.
Invalid alteration original wording stands
o Original gift can take effect provided the wording is still apparent
o If wording CANNOT be read, then it is deemed to be revoked by destruction – BUT rest
remains valid if it can be read
o If there has been an attempt to replace the obliterated words (e.g., blocked off original
wording) court is likely to decide that the obliteration was conditional on the substitution
taking effect
o If the substitution is NOT taking effect ORIGINAL words CAN take effect if they
are known.
Alteration republishes the will as if it was made on that date (this is important for identifying specific
property such as “my car/house/watch”)
Alteration is INVALID UNLESS:
1. can be proved they were made BEFORE will was executed; or
4
Is the will valid?
Requirements for a valid will: The testator must have:
Capacity
Intention
Complied with the formalities of the Wills Act 1837
Capacity To be valid, the testator must have had capacity to create the will.
The testator must be over 18, and;
Must have had the requisite mental capacity per the test in Banks v Goodfellow:
The testator must have “soundness of mind, memory and understanding”. i.e. the
testator must have understood:
The nature of his act and its broad effects
o i.e. that he is writing a will and he knows what it means.
The extent of his property;
The moral claims he ought to consider.
o E.g. family members.
o Testator must have considered these, but it is open to him to then
ignore these.
The person who puts forwards a will has to prove ALL necessary elements (e.g mental capacity)
There is a PRESUMPTION that the testator had capacity if they show NO sign of mental confusion
o HOWEVER, if there is anything to put his capacity in doubt, the PR’s will have to prove
capacity – burden of proof.
GP should make judgement as to capacity – better to have as witness to will
Intention The testator must have intended to create a will i.e.:
The testator must have general intention
i.e. he must have intended to make a will as opposed any other sort of document.
The testator must have specific intention
i.e. he must have intended to make the particular will in question; the testator must
know and approve its contents.
It is presumed that the testator intended to create a will if he:
o Has capacity
o Executed the will having read it.
UNLESS:
1. The testator is blind or illiterate, or someone else signed it on his behalf.
In such circumstances the probate registrar will require evidence to
demonstrate intention.
E.g. a statement at the end of the will confirming that the will was read over to
the testator, or read by the testator, and they knew and approved its contents.
2. There are “suspicious circumstances” surrounding the drafting of the will e.g. if the will
has been prepared by someone who is a major beneficiary under the will.
o Person putting forward the will must prove testator did actually know and approve
the will’s contents
NB – SRA Conduct issues: solicitors must act with:
Honesty (Principle 4)
Integrity (principle 5) and
In the best interest of their clients (Principle 7)
Solicitors must not abuse position by taking advantage of clients
1
, Solicitors must not act if best interests of client clash with own interests
If gift made to solicitor/member of family is ‘significant’/ ‘of significant value’→ client needs to seek
independent legal advice and solicitors/firms should refuse to act:
‘Significant’:
Anything worth MORE THAN 1% of net estate
Anything likely to become more valuable in the future e.g. shares
Anything which is more valuable than relationship with the deceased justifies
Preventing some/all of will from being admitted
Undue If a testator has capacity and intention to challenge the will a person must prove INVALIDITY on the
influence grounds of UNDUE INFLUENCE or MISTAKE.
and Undue Influence
mistake o A will, or parts of a will will be invalid if it was created as a result of:
Force or fear: of actual or threatened injury.
Fraud: e.g. being misled by some pretence
Undue influence: where the testator’s freedom of choice was overcome by intolerable
pressure, even though his judgement remained unconvinced.
o Person who seeks to challenge a will must prove this is the case – never presumed – but
difficult to prove because died.
CPR – encourages info – access to GP and hospital records – may identify as particularly
vulnerable and persuadable.
Ask questions to solicitor how was will executed – who else was there? Under obligation
to reveal that info
o NB: Requirement of proof is different for gifts in a will and lifetime gifts.
Relationship of trust and confidence
If a donor makes a lifetime gift which requires explanation (e.g. because it is large in
comparison to the donor’s other assets), there is a PRESUMPTION OF UNDUE INFLUENCE.
I.e. the gift will fail unless the recipient can provide the court with a satisfactory
explanation as to why the gift was made.
Mistake
o Any words included without the knowledge and approval of the testator will be omitted from
probate.
o DOES NOT cover situations where the testator misunderstood the meaning of the words used
will remains valid.
o Court may interpret words to give effect to testator’s intention
Formalities s9 of the Wills Act 1837
A will must be:
(a) In writing, and signed:
By the testator or
By some other person in his presence, and under his direction.
(b) It must appear that the testator, by signing the will, intended to give effect to the will.
(c)The signature must be made or the testator must acknowledge that the signature is his in the
presence of 2 or more witnesses.
If 1 of the 2 witnesses DOES NOT see the actual signing or the acknowledgement invalid
will
Not necessary for the witnesses to know the contents of the document.
(d) Each witness must, in the presence of the testator, either:
Attest (i.e. confirm that they believe that the signature is that of the testator) and sign the
will.
Or acknowledge their signature (i.e. acknowledge that it is their signature that appears on
the document).
May just be consciousness of what is going on (Brown v Skirrow)
Wills normally include an attestation clause that the s9 formalities were observed, raising a
presumption of due execution
2
, Witnesses:
o Must be capable of understanding the significance of being a witness.
o Executor can be witness
o If the WITNESS, or THEIR SPOUSE, are beneficiaries under the will, the will remains VALID,
BUT ANY GIFTS to the witnesses will FAIL/lose their entitlement (Wills Act 1837 s15)
Beneficiaries, those married to/civil partners of beneficiaries should NOT be
witnesses or gifts will fail
EXCEPTION
Wills made on actual military service/by mariner/seaman at sea is VALID IN ANY FORM (incl. Oral
statements)(s.11)
ONLY testator’s intention to dispose of property after death required
Remote For wills made between 28 September 2020 and 31 January 2024, ‘presence’ includes means of video
Witnessing conference or other visual transmission
No longer possible now
HOWEVER, signature requires ACTUAL presence of testator
Points for remote witnessing:
Witnessing pre-recorded videos is NOT permitted – the witnesses must see the will being
signed in real-time
The witnesses and testator can all be at different locations, on a three-way link, or two can
be physically together with one at a remote location
The testator must physically sign the will (or acknowledge an earlier physical signature).
Electronic signatures are NOT permitted. The testator will date the will with the date of
signature
The will must then be taken or posted to the witnesses
The witnesses must physically sign the will in the virtual presence of the testator, and, if
possible, in the virtual or physical presence of each other
The witnesses will sign with the date on which they are signing, which may be different from
the date on which the testator signed and the date on which the other witness signs. The
execution process is NOT complete until EVERYONE has signed
Will is NOT valid UNTIL BOTH witnesses sign it → if testator dies before all signatures added, will CANNOT
take effect
Will is valid UNLESS proof exists that formalities not observed
If will includes clause reciting that s.9 formalities observed, presumption of due execution is raised
(‘attestation clause’)
E.g. “Signed by the testator in our joint presence and then by us in his/hers.”
If will has NO attestation clause, judge/registrar must require:
o Affidavit/witness statement verified by statement of truth from a witness/any other
person present during execution; or
o Affidavit of handwriting evidence to identify testator’s signature; or
o Case to be referred to a judge
3
, Revocation and alteration
Revocation By a later valid will or codicil (both impliedly or expressly) s 20 Wills Act 1837
o NB: A codicil is an ADDITION or SUPPLEMENT to a will.
o Codicil will either be expressly revoked by express revocation clause or by implication if
previous will is inconsistent with current will
o Revocation may be invalid if it is conditional upon a particular event which doesn’t
happen
By marriage or civil partnership:
o s18; automatically revoked on marriage or Civil Partnership AFTER executing will
o s18(3) - DOES NOT apply where will was made when testator was expecting to marry &
DID NOT intend the will to be revoked.
UNLESS will states that it is conditional on marriage taking place, it will take
effect UNLESS expressly revoked take effect even if marriage does not
happen
o s18A: post-divorce will is still valid – but the gift to the ex-spouse is INVALID – they are
treated to have died on divorce date so gift also fails
Full physical destruction with intention to revoke – in presence of testator and by his destruction
(s20)
By burning, tearing or otherwise destroying the same.
By the testator or
In the presence of the testator by the testator’s direction with the intention of revoking the
will.
This requires both physical destruction and intention to revoke in testator’s presence and by
his direction.
NB: Physical destruction is necessary. Crossing out or simply writing the words
“revoked” across the will is not sufficient.
Intention is necessary. Accidental destruction will not result in the will being revoked.
Destruction by another in a different room will NOT revoke the will even if it is at the
testator’s direction.
Partial destruction will only be taken to revoke the entire will if it destroys a vital part, e.g
the signature
Alteration Any alteration must be properly executed like the original (initials of testator and witnesses in
margin would suffice): a codicil.
Invalid alteration original wording stands
o Original gift can take effect provided the wording is still apparent
o If wording CANNOT be read, then it is deemed to be revoked by destruction – BUT rest
remains valid if it can be read
o If there has been an attempt to replace the obliterated words (e.g., blocked off original
wording) court is likely to decide that the obliteration was conditional on the substitution
taking effect
o If the substitution is NOT taking effect ORIGINAL words CAN take effect if they
are known.
Alteration republishes the will as if it was made on that date (this is important for identifying specific
property such as “my car/house/watch”)
Alteration is INVALID UNLESS:
1. can be proved they were made BEFORE will was executed; or
4
