A Will is one of the most important documents a person can sign. Parliament recognised this nearly 200 years ago.

The Wills Act 1837 set out the requirements for making a Will in English Law. They include practical steps which are designed to prevent fraud and coercion. The added formalities make sure the person signing the Will is aware how important the document is.

The author of a Will is called the ‘testator’; sometimes they are called the ‘testatrix’ if they are female.

What Age Can Someone Write a Will?

In England and Wales anyone who is 18 or older may make a Will if they have the ‘mental capacity’ to understand what they are doing, why and its consequences. In certain circumstances members of the armed forces or seamen may make Wills if they are under 18.

Mental Capacity & Writing Wills

In order for a will to be valid, the testator must have what is known as the ‘capacity’ to make one. This idea used to be referred to with the phrase ‘of sound mind’ but since the Mental Capacity Act 2005, a much more up to date concept has emerged. The Mental Capacity Act itself relates primarily to other areas of law, such as the making of Lasting Powers of Attorney, but the guidance which accompanies it is very helpful in explaining what legal and care practitioners mean when they say ‘capacity’.

The most frequently mentioned case to do with whether someone was mentally capable of making a Will under the common law was Banks v Goodfellow, which was reported in 1870. The test in that case was elaborated on later but the principles remain true. The test had four strands:

  • A person must be able to understand that they are making a Will and what the effects of making it will be. They should be able to understand what would happen if they do not make a will.
  • The testator must have a basic grasp of what they own and are entitled to give to people in the Will.
  • A person must be aware of those who might be expected to receive part of the estate.
  • A person must not be suffering from any sort of delusion at the time of making the Will which would affect their judgment. This may include symptoms of mental illness, injury or conditions – permanent or temporary.

The principle behind the Mental Capacity Act is relatively straightforward: if someone is able to make a decision for themselves they should be allowed to do so, even if they require help to do so. This is expanded upon within the act and its guidance, but the basic ideas relevant to making a Will are:

  • A person is assumed to have the capacity to do something unless it is shown they do not, even if the decision they make seems unwise or foolish.
  • The fact a person does not have the capacity to make one decision does not necessarily mean they are unable to make others. Their ability is assessed on the specific decision to be made, not in general.
  • A person may be able to make a specific decision at one time of the day but not at others, or they may be able to make a decision within certain situations or contexts but not others. If this is the case, effort should be made to present them with a situation in which they are able to make the decision.

These two general tests, and the cases based on them, will be looked at when a court is asked to rule on capacity. If there is genuine doubt, the best course of action is to ask a doctor to prepare a report on the person’s capacity along the lines set out in the joint advice of the Law Society and British Medical Association.

There is one final issue to do with mental capacity which may invalidate a Will. That is undue influence. Where someone is simply doing what another person tells them to do because they do not fully understand the issues, they are unlikely to have the mental capacity to make a Will. However, there are times when someone who is fully capable of making a decision is pressured into doing what someone else wants. This is a very difficult area of law and by its nature very difficult to prove.

Formalities: Writing Wills and Witnesses

The Wills Act states that a will must be in writing, with the exception of ‘soldiers and mariners’ mentioned above.

It must be signed by the testator. If they are incapable of physically signing it themselves, they may ‘direct’ someone else to sign the Will for them, provided they are present when it is signed.

The person must appear to intend that the signing of the Will should make it legally binding.

The testator’s signature must be witnessed by two people at the same time. They must also sign the will in the testator’s presence.

Marriage & Divorce and Your Will

A will is revoked if the testator gets married after they have executed it, unless the will expressly states they intend to get married to their spouse. It is not enough to state that the testator intends to get married, they must name the person.

When a gift is made to a spouse but the testator subsequently divorces them, that spouse is deemed to have died for the purposes of the will.

Validity of Gifts

A gift to someone who witnesses the will is not valid.

The rules about what happens if something given to someone in a will is sold before the testator dies are not entirely straightforward so care must be taken.

Validity of Amendments

An amendment to a will when executing it should be signed by the testator and both witnesses.

After the Will has been executed an amendment should be executed using the same formalities as a Will. This is frequently encountered in documents known as ‘codicils’. These were often used to amend small parts of a Will without having to write out the whole will again. Nowadays, the language used in Wills is generally much plainer and the use of word processing software has made producing Wills much quicker, so it is often just as quick to produce a new Will.

If an amendment to a Will has not been properly attested, it is not valid. If the original wording can be read then it stands but if the original wording has been obliterated, that wording is ignored.

Contact our Probate & Will lawyers

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