A will that fails to meet the legal requirements is not a will at all. The consequences can be devastating for the people you intended to benefit. Here is what the law actually requires.
The law governing wills in England and Wales is contained primarily in the Wills Act 1837, legislation that is nearly two centuries old. Despite its age, the Act's formal requirements are strictly applied by the courts. A will that does not comply with them is invalid regardless of what the testator intended. Every year, families discover that a loved one's wishes cannot be given effect because of a technical failure in the will's execution.
1. The Testator Was Under 18
In England and Wales, you must be 18 or over to make a valid will (with a narrow exception for members of the armed forces on active service). A will made before the testator's 18th birthday is void. This rarely causes practical difficulty, but it is worth noting for parents of young adults who are receiving any inheritance or life insurance at a young age.
2. The Will Was Not in Writing
A will must be in writing. It can be handwritten or typed. It cannot be an oral statement, a video recording, or a note on a phone. The requirement is absolute. There is no mechanism in English law to give effect to an oral testamentary wish, however clearly expressed and however many witnesses heard it.
3. It Was Not Signed by the Testator
The will must be signed by the testator, or by someone else in their presence and at their direction if the testator cannot sign themselves. The signature must be intended to give effect to the will. Courts have held that initials, a mark, and even a rubber stamp can constitute a valid signature in some circumstances, but the safest practice is a full signature at the foot of the will.
4. Witnesses Were Not Present at the Same Time
The signature must be made or acknowledged in the presence of two witnesses who are both present at the same time. Each witness must then sign the will in the presence of the testator. The critical word is 'presence': the courts have interpreted this as requiring the testator to be physically in the same room as the witnesses at the moment of signing.
Remote Witnessing
Legislation passed during the COVID-19 pandemic permitted video witnessing of wills executed between 31 January 2020 and 31 January 2024. This provision has now expired. All wills must now be witnessed in physical presence.
5. A Witness Was a Beneficiary
A witness cannot benefit under a will they have witnessed. If a beneficiary (or their spouse or civil partner) acts as a witness, the gift to that beneficiary fails, even though the rest of the will remains valid. The will stands, but the witnessing beneficiary receives nothing. This is one of the most common errors made in homemade wills.
6. The Testator Lacked Testamentary Capacity
To make a valid will, the testator must understand the nature of making a will and its effects, understand the extent of their property, understand the claims of those who might expect to benefit, and not be suffering from any disorder of the mind that poisons their affections or perverts their sense of right. This is the test in Banks v Goodfellow [1870], still applied by courts today.
Wills made by elderly testators are particularly vulnerable to challenge on capacity grounds. A solicitor who takes instructions and records them carefully, noting the testator's understanding and mental state, provides important evidence that a will was made with full capacity.
7. The Testator Was Subject to Undue Influence
Undue influence in the law of wills requires proof of actual coercion: pressure that overpowers the free will of the testator rather than merely persuasion or the natural influence of close relationships. Unlike undue influence in the law of contract, it cannot be presumed in the testamentary context. A court will only set aside a will on this basis if positive evidence of coercion is established.
That said, suspicious circumstances such as a will that radically departs from an earlier will without apparent reason, made at a time when the testator was dependent on the new beneficiary, will be scrutinised carefully. Solicitors taking instructions from elderly or vulnerable testators in the presence of potential beneficiaries should always arrange a private consultation.