In England and Wales, the requirements for a valid Will are set out in the Wills Act 1837. Failure to adhere to these criteria can result in the whole estate falling into intestacy.
Criteria for a valid Will
In order for a will to be valid and withstand challenge, there are a range of criteria to be adhered to:
- The Will must have been entered into by someone over the age of 18.
- The Will must have been entered into a person who is (1) of sound mind (2) drafts the Will voluntarily and without duress. Sound mind points to the mental capacity of the testator or testatrix, which questions whether the drafter of the Will fully understands the implications of making it, the overall value of their estate and to whom their assets are going to be distributed. If mental capacity is in contention, it is advisable to seek medical opinion.
- The Will must be in writing.
- The Will must be signed in the presence of two witnesses. If the witness is a beneficiary of the Will, or married to a beneficiary of the Will, that witness cannot subsequently inherit.
Destroying or revoking a Will
A Will can be altered after signing through (1) adding a codicil or (2) drafting a replacement Will. A codicil is a written document containing amendments to the original Will, which must be signed and witnessed as per the original Will in order to be valid. If a person wishes to cancel their Will entirely and start over, the new Will must state it is revoking the previous Will, which will have to be destroyed.
A Will is destroyed where it is torn, burned or otherwise disposed of in the presence of the drafter with the intention that it is to be destroyed. Diligence must be carried out to check other copies have not been made.
It is important to note that getting married after making a Will may have the legal effect of revoking it, unless contingency for getting married is made.
Contact our Wills and Probate Solicitors
Our solicitors have extensive experience in handling matters relating to the drafting of Wills. Our client base is not only domestic, but international, meaning we are well placed to advise on situations where a deceased either had assets overseas or their primary domicile was not in the UK.