With lots of discussion recently around the issues caused by DIY Wills and why the initial financial savings of doing it yourself could actually cost your loved ones in the future, this article discusses what formalities are needed for a Will to be valid and what happens should these not be observed.
In order to have a valid Will, there are a strict set of formalities which must be observed both when preparing the Will and when executing (signing) it.
Formalities can easily be overlooked if a person has carried out a DIY Will by using a Will making kit, or downloading a template, or even if using a solicitor on occasions where the testator (the individual making the Will) is left to sign the Will without proper instructions.
What are the formalities when preparing a Will?
The testator must:
- Be over the age of 18
- Have testamentary capacity, which means that the testator must:
i) understand they are making a Will and the effects of it;
ii) understand the extent of their estate, i.e., what they have to give away such as property, investments, bank accounts; and
iii) understand who they might be expected to benefit and who may have a claim against the estate under the Inheritance (Provisions for Family and Dependents) Act 1975 if the testator chooses not to benefit them – although in England and Wales we have testamentary freedom so can choose who to benefit.
These formalities are set out to prevent fraud and coercion and to ensure the person signing the Will is aware how important the document is.
What are the formalities for executing (signing) a Will?
The Wills Act 1837 provides that to be valid a Will must:
- Be in writing; and
- Be signed by the testator in the presence of two witnesses who are both over the age of 18 and both not benefitting under the terms of the Will. In addition, it is important to ensure that:
i) neither the witness nor their spouse / civil partner are benefitting under the Will. If they are, the gift will be void, i.e., that witness or their spouse / civil partner will not benefit; and
ii) both witnesses have a clear view of the testator signing their Will. The testator must also have a clear view of the witnesses signing.
Failure to adhere to the above can expose a testator’s Will to challenge and lead to disputes which can be both time-consuming and expensive. In the event that a Will is found to be invalid, the previous valid Will becomes effective or in the absence of a former valid Will, the estate will be distributed in accordance with the rules of intestacy.
The ‘intestacy rules’ dictate how your estate passes and broadly speaking the rules work through family members from most immediate (such as surviving spouse / civil partner and children) to more distant relatives (such as aunts / uncles).
It is important to take legal advice when making a Will to ensure that the formalities are met, and you are achieving your desired outcome in how you wish for your estate to be distributed.