Wills Act 1837 UK: The Formal Requirements for a Valid Will in England and Wales

Section 9 of the Wills Act 1837 (as amended by the Administration of Justice Act 1982) sets out the formal requirements for a valid will. ALL of the following must be satisfied: (1) IN WRITING: the will must be in writing. There is no requirement for it to be typed or printed — a handwritten will is valid (a holograph will). There is no requirement for it to be on a particular type of paper or in a particular format. Electronic documents do not satisfy this requirement (except in exceptional pandemic circumstances — see below); (2) SIGNED BY THE TESTATOR: the will must be signed by the testator — or by some other person in the testator's presence and by the testator's direction (e.g. if the testator cannot physically sign, another person can sign on their behalf). 'Signature' is broadly construed: it can be any mark the testator intends as their signature — including initials, a cross, a rubber stamp, or even a thumb print; (3) SIGNED OR ACKNOWLEDGED IN THE PRESENCE OF TWO WITNESSES: the testator must sign the will (or acknowledge a prior signature) in the presence of TWO witnesses who are both present at the same time. It is not sufficient for the testator to have signed earlier and then show the already-signed will to each witness separately — both witnesses must be present simultaneously when the testator signs or acknowledges; (4) EACH WITNESS MUST ATTEST AND SIGN: after witnessing the testator's signature or acknowledgment, each witness must ATTEST (acknowledge that they have seen the signing) and SIGN the will themselves, in the testator's presence. There is no requirement for the witnesses to sign in each other's presence (though they usually do); (5) TESTAMENTARY INTENTION: in addition to the formal requirements, the testator must have ANIMUS TESTANDI — the intention that the document should be their will. A document that appears to satisfy the formal requirements may be invalid if it can be shown the testator did not intend it as their final will (e.g. it was a draft or a letter of wishes).

The witness requirements under the Wills Act 1837 include important restrictions on who can act as a witness: (1) WHO CAN BE A WITNESS: any adult who is present and capable of understanding what they are doing can be a witness to a will. There is no requirement that witnesses be of any particular profession or status. Witnesses do not need to read the will or know its contents — they are simply witnessing the signature of the testator; (2) THE CRITICAL RESTRICTION — BENEFICIARY WITNESSES (s.15): if a person who is a BENEFICIARY under the will (or the spouse or civil partner of a beneficiary) acts as a witness, the gift to that beneficiary is VOID — even though the will itself remains valid. This is one of the most common sources of invalidity in amateur wills: (a) Example: the testator leaves £10,000 to their friend Sarah. Sarah witnesses the will. Sarah's legacy is void — it cannot be paid. The will remains valid for all other purposes; (b) The rule applies to SPOUSES and CIVIL PARTNERS of beneficiaries — if John is a beneficiary and his wife Mary witnesses the will, John's gift is void; (c) The rule does NOT apply to the testator themselves, or to professional executors/trustees named in the will who receive no beneficial gift; (3) EXECUTOR-WITNESSES: an executor named in the will CAN safely act as a witness if they receive no personal beneficial gift. Being an executor is not the same as being a beneficiary; (4) WHAT HAPPENS TO VOID GIFTS: a gift made void by the beneficiary-witness rule is treated as if it had never been made — it falls into the residue (or, if the void gift IS the residue, causes partial intestacy); (5) INDEPENDENCE: there is no statutory requirement that witnesses be 'independent' of the testator — a spouse, child, or employee can be a witness. The only statutory restriction is the beneficiary-witness rule in s.15. However, as a matter of good practice, witnesses should be: (a) adult; (b) of sound mind; (c) not beneficiaries or spouses of beneficiaries; (d) not under undue influence from anyone.

The Wills Act 1837 sets out several ways in which a will can be revoked: (1) REVOCATION BY A LATER WILL OR CODICIL (s.20): a later will or codicil revokes an earlier will to the extent of any inconsistency. Professional wills typically include an express revocation clause: 'I revoke all former wills and testamentary dispositions'. Without such a clause, earlier wills may survive to the extent not inconsistent with the new will; (2) REVOCATION BY MARRIAGE OR CIVIL PARTNERSHIP (s.18): marriage (or the formation of a civil partnership) AUTOMATICALLY REVOKES any existing will. This is one of the most important revocation rules: (a) EXCEPTION — WILLS MADE IN EXPECTATION OF MARRIAGE: under s.18(3) (as amended by the Administration of Justice Act 1982), a will is NOT revoked by the marriage if the will was made 'in contemplation of' the marriage and expresses that intention. The will must expressly state that it is made in contemplation of the specific marriage — a general statement is insufficient; (b) PRACTICAL IMPLICATION: anyone who makes a will and then marries must make a new will if they want the existing provisions to stand. The marriage revokes the old will and the intestacy rules would then govern the estate; (3) REVOCATION BY DESTRUCTION (s.20): a will is revoked by the testator BURNING, TEARING, or otherwise DESTROYING it with the intention of revoking it. The destruction must be: (a) physical destruction of the document; (b) done by the testator or by a third party in their presence and by their direction; (c) done with the intention to revoke. Accidental destruction does not revoke the will — the testator must intend the revocation. A will that is lost (not deliberately destroyed) is presumed to have been revoked — but this presumption is rebuttable; (4) DIVORCE DOES NOT REVOKE BUT NULLIFIES GIFTS: under s.18A (inserted by the Administration of Justice Act 1982), dissolution of marriage or civil partnership does NOT revoke the will — but it nullifies: (a) any appointment of the former spouse/CP as executor; (b) any gift to the former spouse/CP. The former spouse is treated as having predeceased the testator for these purposes.

The Wills Act 1837 s.11 creates an exception for 'privileged wills' — informal wills made by persons in active military service: (1) WHO CAN MAKE A PRIVILEGED WILL: under s.11, any soldier, airman, or mariner (including naval personnel) who is on active military service can make a will without complying with the formal requirements of s.9. This applies to: (a) any member of the armed forces who is actually engaged in or under orders for actual military service; (b) any mariner or seaman who is at sea (the seamen's privileged will); (2) WHAT FORMALITIES ARE WAIVED: a privileged will can be: (a) completely unwitnessed; (b) oral (a nuncupative will — spoken aloud to witnesses without any writing); (c) written without any witnesses; (d) in any form of writing, including a letter or a note; (3) AGE — MINORS CAN MAKE PRIVILEGED WILLS: a minor (under 18) CANNOT ordinarily make a will — they lack the legal capacity to make a will under the Wills Act 1837 s.7. However, s.11 allows minors in actual military service to make privileged wills. This is one of the very few exceptions to the general rule that a testator must be 18 or over; (4) SCOPE OF ACTUAL MILITARY SERVICE: the courts have construed 'actual military service' broadly — it includes soldiers deployed overseas, soldiers on their way to a posting, and soldiers in a theatre of operations (even if not in active combat). In Re Jones [1981] 1 WLR 1035, a soldier in Northern Ireland during the Troubles was held to be on actual military service; (5) CODICILS: the privileged will rules apply to CODICILS as well as to principal wills. A privileged codicil can be made without witnesses by a qualifying person in active service.

The most common failures to satisfy the Wills Act 1837 formalities and their consequences are: (1) ONLY ONE WITNESS (OR NO WITNESSES): the most common amateur will failure. The result is that the ENTIRE WILL IS INVALID — it has no legal effect. The estate passes under intestacy rules as if no will existed; (2) WITNESSES NOT PRESENT SIMULTANEOUSLY: the testator signs separately before each witness, rather than in front of both at the same time. This makes the will invalid under s.9 — both witnesses must be present at the same time when the testator signs or acknowledges. This is a common error in wills witnessed via video call (before the temporary pandemic easement); (3) BENEFICIARY WITNESS (s.15): the will is VALID but the beneficiary-witness's gift is VOID — see above; (4) NO SIGNATURE BY TESTATOR: a will that is dated and witnessed but not signed by the testator (e.g. signed only by witnesses, or signed only with a name already on the document) is invalid unless the name can be treated as a signature — which depends on whether the testator intended their name to stand as their signature; (5) ALTERATION WITHOUT RE-EXECUTION: alterations made to a will after it was signed and witnessed are NOT valid unless the will is re-executed with fresh signatures and witnesses (or a codicil is executed). An alteration to the amount of a legacy written in after execution is void — the original amount stands (or the gift fails if the alteration renders it illegible); (6) WRONG DATE — NOT A GROUND FOR INVALIDITY: a will that is incorrectly dated (or undated) is NOT automatically invalid. The date on a will is not a formal requirement under s.9. However, an incorrect date can cause evidential difficulties if there are competing wills; (7) CONDITIONAL WILLS — UNUSUAL CASES: some wills are made conditional on an event occurring (e.g. 'in case I die during this operation'). A will expressed as conditional on a specific event may be admitted to probate as an unconditional will if the condition was merely the occasion for making it, not a condition of its taking effect. This is a technical area.