Making a valid Will

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• Making a valid Will

Making a Will is the usual way in which a person expresses his or her wishes regarding their estate, i.e. everything you own. As well as making provisions for how and who the estate is to pass to, Wills also appoint Executors (who are responsible for winding-up the estate and distributing it to the beneficiaries named within the Will).   

A Will must be made in writing and conform to a set of rules in order for it to be formally valid.

There are three essential features which are required for a Will to be valid:-

1. Capacity of the testator (the person making the Will);
2. The intention to make the Will; and
3. Signing formalities.

Capacity

Anyone who is legally and mentally capable and who signs willingly can make a valid Will. 

In order to make a valid Will, the person making that Will (usually referred to as the testator) needs to have capacity.  To satisfy this, firstly, the testator is required to:-

1. be at least 12 years old; and
2. be of sound mind. This can be complex as there is no definition of this in legislation, but in very broad terms, the testator requires to be capable of making, communicating, understanding and acting upon his or her decisions, and should also be able to remember the decisions he or she has made previously.  This does not have to be a permanent state of mind, and it is possible for a testator to prepare a Will during a lucid period where he or she may not otherwise have the necessary capacity.  Legal capacity depends on understanding as opposed to wisdom, and so the nature of the decision made by the testator is irrelevant as long as he or she understood what he or she was deciding, and the effect of that decision.

Intention

It needs to be clear that the testator intended and wanted to make a Will.  There is no particular wording or language required to demonstrate this.  The important point is that the document must be capable of being interpreted as a Will dealing with all or part of the testator’s estate.  A verbal agreement that property is to pass to a certain person following the death of the testator has no binding effect – such a promise must be put into a written Will if it is to be enforceable.

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The Will must be signed by the testator in order for it to be valid.  Ideally, it needs to be signed by the testator on every page and witnessed by one person on the final page. 

To find out more about how our Private Client team can help with your Will contact us on 01224 332400 or email us here.