Introduction to Wills and Intestacy — SQE1 FLK2 Wills and Administration of Estates

A widower writes his own will. Everything to his lodger, nothing to his only son. He signs it at his kitchen table in front of two women from his church, who both watch him sign. One signs the will as a witness before she goes. The other is called away and never signs it at all, though she is perfectly willing to say what she saw. He dies a year later. Who gets the estate?

The son. All of it, and the lodger takes nothing. One missing signature, and the whole document is worthless. This is Introduction to Wills and Intestacy, the first topic in this subject, and it is really two questions. Did the will work? And if it did not, who inherits instead? Keep that widower in mind.

Here is the route. The three things every valid will needs: capacity, knowledge and approval, and the formalities. We take them in that order, because that is the order a challenge tends to come in. Then the events that can undo a will that was perfectly good when it was made. And then intestacy, which is where you land whenever any of it goes wrong.

Start with capacity, and with the case that has governed it since 1870. Banks v Goodfellow. Four limbs, and you should be able to recite them. The testator must understand the nature of making a will and its effects. He must understand the extent of the property he is disposing of. He must comprehend and appreciate the claims of those who might expect to benefit. And he must have no disorder of mind that poisons his affections or perverts his sense of right.

Note what that test does not demand. He does not need to know the value of every asset, only the general nature and extent of what he owns. He does not need to understand the legal technicalities. And he may leave out someone with a strong moral claim, so long as he appreciates that the claim exists. Eccentric is not the same as incapable.

One more thing about that test, and it catches people. It is the common law test that applies, not the statutory test in the Mental Capacity Act 2005. The two are not the same, and for wills it is the older one that governs.

Capacity is judged at the time the will is made, not at death. But there is an exception worth knowing, because scenarios love it. Under the rule in Parker v Felgate, from 1883, a will can be valid even if the testator's understanding has faded by the time she signs. Three conditions. She had capacity when she gave the instructions. The will was prepared in accordance with them. And at execution she understands that she is signing the will she asked for.

There is also a practice rule you should know by name. The golden rule: where the client is aged or seriously ill, the solicitor should arrange for a medical practitioner to satisfy themselves as to capacity and record it. So consider this. An eighty-eight-year-old man with advanced heart disease is alert and clear at all three meetings. The solicitor takes no medical opinion. He leaves everything to one of his three children. Do the other two succeed in challenging the will?

No. The golden rule is prudent practice designed to avoid disputes. It is not a rule of law and it is not a condition of validity. Capacity is judged on all the evidence, and here the evidence is that he had it. Following the rule protects the will from argument. Failing to follow it does not destroy the will.

Now the formalities, and this is where wills actually fail. Section 9 of the Wills Act 1837. The will must be in writing. It must be signed by the testator, or by someone else in his presence and at his direction, and the signature must be intended to give effect to the will. The signature must be made or acknowledged in the presence of two witnesses, present at the same time. And each witness must then sign, or acknowledge, in the presence of the testator.

Read that last requirement again, because it contains the trap. Each witness signs in the presence of the testator. Section 9 adds four words that decide a lot of questions: not necessarily in the presence of any other witness. So hold this one. Both neighbours watch him sign. One signs and goes home. The other is called away and comes back, and signs while he watches. It comes back at the quick check.

Two more formal points. The testator must be at least 18, which is s.7 of the same Act. The exception is the privileged will. A member of the armed forces on actual military service, or a mariner at sea, can make an informal will at any age, without witnesses.

And the witnesses must not be beneficiaries. Under s.15, a gift to an attesting witness, or to that witness's spouse or civil partner, is void. Note carefully what fails. The gift fails. The will does not. The witness still makes the will valid; she simply cannot take under it. And there is a rescue. Under the Wills Act 1968 the gift survives if the will is duly executed without her, that is, if at least two other proper witnesses signed.

What about doing all this on a screen? Electronic wills are not valid in England and Wales. The will must be signed on paper. There was a temporary concession allowing video witnessing during the pandemic, but it expired on 31 January 2024, so the two witnesses must again be physically present. The Law Commission has recommended reform. It is not law yet.

Knowledge and approval next. The rule is a presumption: a testator who has capacity and executes a will with proper formalities is presumed to have known and approved its contents. That presumption is what makes most wills unchallengeable. But it can fail, and you should know when.

It fails in a known list of situations. The testator was blind or illiterate, or could not read English. The will was never read over to her. The provisions are surprising. A beneficiary prepared the will. Those are the suspicious circumstances, and where they exist the burden turns round. It is then for those propounding the will to prove positively that the testator knew and approved what it said.

Do not confuse that with undue influence, because the burden runs the other way. For a will, undue influence means coercion: pressure that overpowers the testator's volition without genuinely convincing her judgment. That is the rule in Wingrove v Wingrove. Persuasion is not enough. Appeals to affection, or to gratitude, or even nagging, are not enough.

And here is the point candidates miss. Unlike lifetime gifts, there is no presumption of undue influence for wills. However close the relationship, and however dependent the testator, the burden rests throughout on the person alleging it, and they must prove actual coercion. Suspicious circumstances shift the burden on knowledge and approval. They do not shift it on undue influence.

Now the events that undo a good will. Marriage or civil partnership revokes an earlier will automatically, under s.18, unless the will was expressly made in expectation of that marriage. And divorce or dissolution does something narrower under s.18A. The will survives, but the former spouse is treated as having died on the date of the decree. So a gift to her fails, and an appointment of her as executor fails with it, and the estate may need someone else entirely to take out the grant.

Which brings us to intestacy, and back to our widower. Intestacy applies where there is no valid will at all. It also applies in part where a will fails to dispose of everything, which is a partial intestacy. That is what you get when a gift lapses because the beneficiary died first and no substitute was named.

The rules are in s.46 of the Administration of Estates Act 1925. Take the commonest case: a spouse or civil partner and issue. The survivor takes three things. The personal chattels absolutely. Then a fixed net sum, the statutory legacy, currently £322,000, with interest. Then one half of whatever is left, absolutely. The issue take the other half on the statutory trusts.

Work one through. Chattels worth £14,000, and £522,000 in accounts. The husband takes the chattels, then £322,000, which leaves £200,000. He takes half of that, so £100,000, and the two children share the other £100,000. Fifty thousand pounds each. Note that the house they owned jointly never enters the estate at all, because it passes by survivorship.

Now shrink the estate. Chattels of £8,000, and £250,000 in savings. Same husband, same two adult children. What do the children get?

Nothing. The statutory legacy is paid before the issue receive anything, and £250,000 is less than £322,000, so the whole of it is swallowed. He takes the chattels too. This is why the figure matters, and why the children's instinct that a parent's estate is always shared is simply wrong.

One condition attaches to the spouse's entitlement. The survivor takes on intestacy only if they survive the intestate by 28 days. Die inside that window and they are treated as having predeceased, and the estate passes as though there were no spouse at all. And note the other reform: since 1 October 2014 the spouse takes that half of residue absolutely, not as a life interest.

If there is no spouse, there is a ladder, and you go down it one rung at a time. Issue first, taking equally. Then parents. Then brothers and sisters of the whole blood, then of the half blood. Then grandparents. Then uncles and aunts. And if nobody in that list survives, the estate goes to the Crown as bona vacantia.

Two words to carry with you down that ladder. Per stirpes, meaning by right of representation. If a child of the deceased died first leaving children of her own, those grandchildren step into their mother's shoes and share the one share she would have taken. They do not each take a full child's share. Count the branches, not the heads.

And the hardest thing you will have to tell a client. An unmarried partner inherits nothing on intestacy. However long the relationship, and whatever they built together, the rules recognise marriage, civil partnership and blood, and nothing else. There may be a claim for reasonable financial provision under the Inheritance (Provision for Family and Dependants) Act 1975, but that is litigation, and it is uncertain and expensive. The answer is to make a will.

A word on how SQE1 tests this. You will not be asked to recall a case name. You get a set of facts, five answers, and one job, which is to pick the best one. Most of this topic is statute and arithmetic, and that is where the marks are. Learn the sections and the figures.

If you keep only three names. Banks v Goodfellow, for the four limbs of testamentary capacity. Parker v Felgate, for the testator who had capacity when she gave instructions but not when she signed. And the rule in Wingrove v Wingrove, for undue influence meaning coercion and nothing less.

Four traps. One: presence is not attestation. A witness who watches the testator sign but never signs herself has not attested, and no amount of willingness to confirm afterwards will save it. That is what killed our widower's will.

Two: keep the two burdens apart. Suspicious circumstances shift the burden of proving knowledge and approval onto those putting the will forward. Undue influence has no presumption at all, and must be proved by whoever alleges it. Three: a gift to a witness fails, but the will stands, and the gift can still be saved if two other witnesses attested.

Four: mind what falls outside the estate. Property held as beneficial joint tenants passes by survivorship, and never reaches the will or the intestacy rules at all. Neither does a pension nominated to someone, or a policy written in trust. Work out what is in the estate before you start dividing it.

Quick check, and you were told to hold this one. A man signs his will in front of two neighbours, and both watch him sign. The first neighbour signs as a witness there and then. The second is called back to her own house, and returns after the first has gone home. She then signs while the man sits watching her. The will is in order in every other respect. Is it validly executed?

Three candidate answers. One: yes, because each neighbour signed in the man's presence, and witnesses need not sign in each other's presence. Two: no, because both witnesses must sign before either of them leaves the testator's presence. Three: no, because the two witnesses must sign in the presence of each other as well as the testator. Pause here if you want a moment.

The answer is one. Both neighbours were present together at the moment that matters, which is when the testator signed. After that, each witness has only to sign in his presence, and s.9 says in terms that this need not be in the presence of any other witness. He watched them both. The will is good.

Why the others fail. Two and three both import a requirement the section does not contain. The togetherness requirement attaches to the testator's signature or acknowledgement, not to the witnesses' signatures. Get those two moments the wrong way round and you will fail this question every time.

Five things to take away. One: capacity is Banks v Goodfellow, four limbs, judged when the will is made, and not the Mental Capacity Act. Two: s.9 needs writing, the testator's signature, two witnesses together when he signs, and each of them signing in front of him, but not in front of each other.

Three: a gift to an attesting witness is void, though the will survives. Four: on intestacy the spouse takes the chattels, £322,000, and half the rest, and must survive 28 days. Five: an unmarried partner takes nothing. And our widower's estate went to the son he meant to disinherit, because one witness walked out of the kitchen. Next time, Drafting and Executing Wills.

Practise this topic with exam-style questions at sqe1prep.co.uk. This episode is for education and exam revision only, not legal advice, and we are not affiliated with or endorsed by the SRA or Kaplan.