An overview of the validity of a will

A will is a legal declaration of a testator’s intentions for items to be implemented on or after their death, made in compliance with applicable standards. The testator must have intended to create a testamentary instrument, but there is no requirement for specific wording or form. It must be a revocable ambulatory disposition of property, taking effect on or after death.

If two people agree to execute separate wills on mutually agreed terms, the wills may be mutual, conditional, or joint. A secret, semi-secret, or even preparatory trust may be included in the will. In some cases, even if a document is not witnessed, it may still be regarded as a part of the will.

It is improbable that a will that was not executed in compliance with the Wills Act 1837 (WA 1837) will be upheld. If a professional handled the formalities, this could lead to a negligence claim. The regulations governing statutory and privileged wills have been loosened.

Requirements for a valid will

Checking that a completed will satisfies all conditions for a legitimate will is crucial when receiving one from a client. This implies that the practitioner must ensure it was carried out following WA 1837, s. 9’s prescribed formalities. The will cannot be deemed legitimate if any formalities are broken.  Make sure that the witnesses are not beneficiaries of the will. This should have been verified when the will was created, but confirming is still vital.

A legitimate will must meet several essential conditions, including the testator’s complete capacity and intention to make the will. If there is even the slightest uncertainty about it, it is necessary to get independent expert advice regarding the testator’s ability.

The will must be “in writing,” but that criterion is construed broadly as long as the words are there in a visible form.

The testator’s signature should appear on the will, but there are numerous instances in which this may not be feasible. In these cases, an attestation clause should specify who signed the will and under what conditions.

A few more things to double-check include the date, any revisions or damage, and any linked documents that need to be incorporated.

Capacity to make or revoke a will

A necessary condition for creating a legitimate will is testamentary ability. The will is void in the absence of testamentary capacity. While executing a will and providing instructions for one, the testator must have a sound disposing mind composed of the three components of mind, memory, and understanding.

A will performed without testamentary ability will not be validated by a recovery from insanity nor invalidated by supervening insanity. There is an assumption that the testator’s capacity was maintained in cases where it was proven to exist or not. Both assumptions can be refuted.

It is assumed that the testator was sane at the time of a properly executed will, which seems reasonable. However, if the testator’s capacity is disputed, the person presenting the will must demonstrate that the testator possessed the required mental capacity at the pertinent times when the instructions for the will were given and executed.

Validity of wills – forms of a will

There is no authority to waive the necessary legal procedures except for protected and foreign wills (in England and Wales, there is no theory of substantial compliance). Section 9 of WA 1837, as amended by section 17 of the Administration of Justice Act 1982 (AJA 1982), applies to the will for deaths occurring after December 31, 1982. Section 9 of WA 1837 states:

‘No will shall be valid unless:

(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.’

Any format for a will is acceptable as long as the prerequisites listed above are met. Though useful in practice, it is not legally obligated to have a date. The phrase “in writing” has been broadly construed to mean that the will need not be written in the testator’s handwriting and can be written on any type of surface.

As long as the testator’s signature appears to be intended to give effect to the will, it may appear on any portion of the document. When the testator presents their signature to the witnesses, both witnesses must be able to view it. The witnesses must be physically and mentally present when they sign or acknowledge their signature in front of the testator. Selecting witnesses is crucial since they can be called upon to testify after the testator dies. While attestation clauses are not required by statute, it is still advisable to include one to prevent needless delays in the probate process.

Validity of wills – presumptions

Several presumptions hold if a will is logical and well-formed. If a properly executed will is brought to the court, the court will infer due execution. The assumption can be refuted, and the maxim’s power varies according to the situation.

If the testator’s ability to make a will seems reasonable, the court will assume that they could do so. Using the standard established in Banks v. Goodfellow [1861–73], All ER Rep 47 is appropriate.

‘It is essential to the exercise of such a power [that is, making a will] that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is deposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties; that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.’

Generally, the test is used as of the will’s execution date.

Keep in mind that where there has been fraud or coercion to execute a document as the testator’s will, testamentary intention will not exist.

The court must be convinced that the testator understood and approved of the will’s contents when they signed it before allowing it to enter probate. If there is due execution and testamentary ability, the requirement of knowledge and approval is presumed unless there are questionable circumstances, an error has occurred, or the testator is blind, deaf, or illiterate.

The legality of wills – changes, additions and deletions

The only option available to the testator is to make the change directly on the face of the will if they would like to change their preferences without creating a new will or codicil. If a will is to be altered after it has been executed, it must adhere to WA 1837, s. 21, which states:

‘No obliteration, interlineation, or other alteration made in any will after the execution thereof shall be valid or have any effect, except so far as the words or effect of the will before such alteration shall not be apparent unless such alteration shall be executed in like manner as herein-before is required for the execution of the will; but the will, with such alteration as part thereof, shall be deemed to be duly executed if the signature of the testator and the subscription of the witnesses be made in the margin or on some other part of the will opposite or near to such alteration, or at the foot or end of or opposite to a memorandum referring to such alteration, and written at the end or some other part of the will.’

It is assumed that a will was amended after it was executed to put it within the purview of WA 1837, s. 21. It’s possible to refute the assumption.

Please take note that the district judge or registrar will require evidence to show whether any alterations in the will were present at the time of execution unless they believe the alteration to be of no practical importance. This is especially true if the alterations are not authenticated as specified by WA 1837, s. 21, by re-executing the will or executing a codicil.

A wills’ legality – privileged wills

Any soldier in actual military service, or any mariner or seaman at sea, may dispose of his personal estate,” according to WA 1837, s.11, without formalities. The 1918 Wills (Soldiers and Sailors) Act (W(SS) 1918) expanded this to cover real estate dispositions in addition to personal property.

A privileged testator falls into one of three categories:

•  a soldier serving in the armed forces
• a seaman or mariner at sea
  • Any member of the Royal Marines or Navy who is in such a situation would be considered to be in active military service if they were a soldier.

The term “soldier” is used widely to refer to officers of all ranks and full- or part-time members of all services. For instance, individuals serving in the actual armed forces, such as members of the Royal Air Force (RAF) and the Army Reserve (previously the Territorial Army), are included, but not civilian airmen.

A wills’ validity – incorporation

Under the doctrine of incorporation by reference, a testator may include a document that they have not completed correctly in their will.

The required paperwork for incorporation is:

• Existing at the time the will is created
• Acknowledged as existing
• Distinctly identified

The document cannot be one that will exist later; it must already exist when the will is executed (and it must be referred to as such).

The will must provide enough description of the document to be recognised and distinguished from others. When a document is incorporated, it becomes testamentary and needs to be interpreted in conjunction with the will. It must be submitted to the probate registry and accepted into probate as part of the will.

Will validity – signature

The conditions for executing a will are outlined in WA 1837, s. 9. The signature does not have to be at the bottom or top of the will; it just needs to seem as though the testator meant for the will to take effect.

The will must be signed by the testator or by someone designated to sign it on their behalf. The signer may use their own signature or that of an attesting witness. To be considered a legitimate instruction to another individual to sign the will on the testator’s behalf, there must be clear and affirmative communication from the testator to that other individual. Even in cases where the testator is too frail to sign the will or give instructions to someone to sign it on their behalf, there needs to be more than passive acquiescence or adverse action. This communication need not be spoken.

While there is no legal requirement for a particular type of attestation, it is preferable to include one since, if a district judge or registrar does not have an attestation provision, they must first obtain affidavit proof to prove the will was executed properly before awarding probate.

When a will is returned after execution, a solicitor must review it to make sure the execution is legal.

Will validity – foreign component

There is a distinction between movable and immovable assets under English law. The law of domicile (lex domicile) governs the succession to movables, while the direction of the country where they are situated (lex situs) governs the succession to immovables. The same rules apply to intestate succession.

To ascertain whether a will is technically valid for deaths that occur on or after January 1, 1964, one may consult the Wills Act 1963 (WA 1963).

WA 1963 states that under certain conditions, a testamentary document or act shall be deemed duly executed if its execution complies with the domestic law operative in a state where the testator was a national at the time of execution or death.

Will validity and will correction

If it is found that a will does not function as the testator intended (assuming that the testator’s intentions can be ascertained), issues may arise with the will long before a grant of probate is made. Actual and/or prospective beneficiaries may request that the will be amended to reflect the testator’s purported wishes better. Under its statutory or discretionary powers, the court will not easily grant such a request. It will often only correct a will in cases of clerical errors or where the testator’s instructions were not properly understood or executed. It is required to prove what the testator’s instructions were and that the will does not follow those directions for a remedy to be available.

The application needs to be submitted six months from the day the grant of probate was initially obtained. For these purposes, some grants are disregarded, and after six months have passed, an application for an order may be accepted under specific conditions with the court’s approval. In certain situations, a rectification application may be submitted to a registrar before a grant application.