The Wills Act 1837 sets out the required formalities for a Will to be valid. These are as follows:
- The testator must be aged 18 or above at the time the Will is made;
- At the time of making the Will the testator must retain sufficient capacity (see our previous blog here which sets out the requirements for capacity);
- The Will must be in writing; and
- The Will must be signed by the testator in the presence of 2 witnesses who acknowledge the testator’s signature and/or countersign the Will.
The above formalities must all be met in order for a Will to be valid, except when the following mentioned privilege applies. Section 11 of the Wills Act 1837 allows “any soldier being in actual military service, or any mariner or seaman being at sea” to make a Will without complying with the above formalities. A person falling within that class is therefore able to make a Will even if the below apply:
- The testator is under the age of 18;
- The Will is not made in writing; and
- The Will is not witnessed by 2 witnesses (there will need to be at least 1 witness who can attest to the testator’s wishes).
The privilege does not require the testator to remain within the privileged class at the time of death and instead, the privilege arises only when making the Will, not before or after. When considering the privilege, its use and application appears logical on the basis that the class of people may be required to make quick decisions regarding the distribution of their estate whilst serving. That class are also unlikely to have the benefit of legal advice when considering the disposition of their estate.
Despite the privilege allowing any Will made pursuant to those to last until revoked, it is advised, when available, that a later Will is made that meets the requirements of the Wills Act 1837. A Will meeting the requirements will clarify the testators wishes and will limit the ability to challenge their intended distribution. On the other hand, when challenging a Will, or even distribution pursuant to the Intestacy Rules, the possibility of an earlier privileged Will being made should be considered where the testator in question falls within the class.
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Stuart Parris is an Associate in our expert Dispute Resolution team.
If you have any queries relating to the above subject, please contact Stuart or a member of our Dispute Resolution team who will be able to assist with any claim through the civil Court.
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