What makes a Will valid?
Section 9 of the Wills Act 1837 states that a Will is valid if the following formalities are met:
‘(a) it is in writing, and signed by the testator, or by some other person in his presence and by his direction; and
(b) it appears that the testator intended by his signature to give effect to the will; and
(c) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
(d) each witness either—
(i) attests and signs the will; or
(ii) acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness), but no form of attestation shall be necessary.’
In addition to the above formalities, the person making the Will (the testator) must have the required mental capacity. The test for mental capacity is set out in the case of Banks v Goodfellow. This case states a testator has the necessary mental capacity to execute a valid Will if:
- They understand the outcome of making a Will;
- They understand what property they are disposing of in the Will;
- They are able to comprehend and appreciate the claims which they ought to give effect; and
- They have no disorder of the mind that has influenced the disposing of property in their Will.
The testator must also have sufficient knowledge of and give approval to the Wills contents. This is usually fulfilled by the above requirements being satisfied.
If all of the above requirements are met, the Court will presume the Will to be valid. However, it is possible to challenge the validity of a Will.
How do I challenge the validity of a Will?
The validity of a Will can be challenged on many grounds, including:
- The deceased lacked the required mental capacity;
- The deceased did not have sufficient knowledge of, and approve of, the Will and its contents;
- The deceased did not make the Will of their own free will;
- The Will does not reflect the deceased’s intention due to clerical error or failure to understand the deceased’s intentions by the solicitor or Will writer;
- The Will was forged or fraudulently prepared.
How we can help
Amrik Basra is a Trainee Solicitor in our Private Litigation team.
At Nelsons, our team specialises in these types of disputes and includes members of The Association of Contentious Trust and Probate Specialists (ACTAPS). The team is also recommended by the independently researched publication, The Legal 500, as one of the top teams of specialists in the country.
If you have concerns about the validity of a Will, please contact Amrik or a member of our expert Dispute Resolution team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online enquiry form.
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