Study Notes · 49 sections
Wills are fundamental to private client work. As a solicitor, you will help clients express their final wishes, protect their families, and ensure their assets are distributed according to their intentions. Getting it right provides peace of mind. Getting it wrong can cause family disputes and financial hardship.
A properly drafted will is one of the most valuable gifts you can give your clients. It provides certainty, reduces family conflict, and can save significant tax. Many clients delay making a will - your role is to guide them through the process sensitively and professionally.
When someone dies without a valid will, they die "intestate." The intestacy rules then determine who inherits what. These rules may not reflect what the deceased would have wanted. Unmarried partners often receive nothing, and the process is more complex and expensive.
A will allows you to decide who receives your assets after death. Without a will, the intestacy rules apply, which may not reflect your wishes. You can provide for family members, friends, and charities in whatever proportions you choose.
Dying intestate means the state decides who inherits. Your spouse may not receive everything, unmarried partners receive nothing, and the process takes longer and costs more. Disputes are more common when there is no clear expression of wishes.
For parents with children under 18, a will allows you to appoint guardians. Without this, the court decides who will care for your children. This is often the most important reason for parents to make a will.
If you die without a will, your loved ones may face additional stress at an already difficult time. The administration is more complex, takes longer, and costs more. Family disputes are more likely when wishes are unclear.
Testamentary capacity refers to the mental ability required to make a valid will. The testator must understand what they are doing and its effects. Capacity is assessed at the time the will is made, not at death.
The leading case on testamentary capacity is Banks v Goodfellow (1870). The test requires that the testator: (1) understands the nature of making a will and its effects, (2) understands the extent of their property, (3) comprehends and appreciates the claims to which they ought to give effect, and (4) has no disorder of mind that poisons their affections or sense of right.
The testator must understand that they are making a will that will take effect on death. They need not understand every legal technicality, but must grasp that the document disposes of their property after death.
The testator must have a general understanding of what they own. They need not know the exact value of every asset, but must appreciate the overall nature and extent of their property.
Capacity is frequently challenged on grounds of age, illness, or medication. Documenting your assessment of capacity at the time of drafting can help defend against future challenges. Consider obtaining a medical opinion if capacity is in doubt.
Section 9 of the Wills Act 1837 sets out the formal requirements for a valid will. These requirements must be strictly followed. Any deviation may render the will wholly or partially invalid.
The testator must be at least 18 years old to make a valid will. This is set by section 7 of the Wills Act 1837. There are exceptions for members of the armed forces and merchant seamen, who can make "privileged wills" at any age.
The will must be signed by the testator, or by someone else in their presence and by their direction. The signature must be intended to give effect to the will. It can be a mark or initial if the testator cannot sign their full name.
Two witnesses must be present at the same time to see the testator sign or acknowledge the will. Each witness must then sign the will in the presence of the testator. The witnesses do not need to see each other sign.
A beneficiary (or their spouse/civil partner) cannot witness a will. If they do, the gift to them fails, though the rest of the will remains valid. Choose independent witnesses who are not mentioned in the will.
Currently, electronic wills are not valid in England and Wales. The will must be physically signed on paper. The COVID-19 pandemic led to temporary legislation allowing video witnessing, but the requirement for physical signatures remains.
Always check that execution formalities have been properly followed. Even minor defects can invalidate the will. When witnessing, ensure everyone signs in the correct order and that all requirements are met.
Undue influence occurs when pressure is applied to the testator that overcomes their free will. This is more than mere persuasion. It involves coercion that causes the testator to act against their true wishes.
To prove undue influence, evidence of actual coercion is required. However, the "suspicious circumstances" doctrine applies to wills: where suspicious circumstances exist (e.g., beneficiary prepared the will, testator was vulnerable), the burden of proof shifts to those propounding the will.
When suspicious circumstances surround the execution of a will, those seeking to rely on it must prove the testator knew and approved of its contents. Suspicious circumstances include: the beneficiary preparing the will, the testator being frail or confused, or radical changes to previous dispositions.
If undue influence is proven, the affected provisions (or the entire will) will be invalidated. This can result in the will being declared void and the intestacy rules applying. Take precautions when taking instructions, especially where family dynamics are complex.
There is a presumption that a testator who executes a will with proper formalities knows and approves of its contents. This presumption can be rebutted in certain circumstances, particularly where the testator could not have known what the will contained.
The presumption may fail where: the testator was blind or illiterate, the will was not read to them, the will contained surprising provisions, or the testator was deaf/mute and could not communicate with witnesses. In these cases, those propounding the will must prove knowledge and approval.
For blind testators, the will must be read back to them to ensure they know and approve its contents. The "armchair principle" allows extrinsic evidence to explain what the will means in the context of the testator's circumstances.
Always record your advice to clients, especially regarding capacity, knowledge and approval, and undue influence. A file note confirming that the testator understood the will and acted freely can be invaluable evidence if the will is later challenged.
Intestacy occurs when someone dies without a valid will, or when their will does not dispose of all their property. Partial intestacy happens when the will disposes of some assets but not others.
Partial intestacy occurs when a will does not dispose of the entire estate. This can happen when a beneficiary predeceases the testator without a substitute gift, or when the will contains an ineffective gift. The intestacy rules apply to the undisposed portion.
Section 46 of the Administration of Estates Act 1925 sets out the intestacy rules. These determine who inherits when someone dies without a valid will. The rules prioritise spouses and children, then more distant relatives.
| Situation | Who Inherits |
|---|---|
| Spouse + children/issue | Spouse: statutory legacy + chattels + life interest in half residue. Children: remaining half residue per stirpes. |
| Spouse, no children/issue | Spouse receives entire estate |
| Children, no spouse | Children inherit equally per stirpes |
| No spouse, no children, parents survive | Parents inherit equally |
| No spouse, no children, no parents | Siblings inherit equally (or their descendants per stirpes) |
| No closer relatives, grandparents survive | Grandparents inherit equally |
| No closer relatives, uncles/aunts survive | Uncles/aunts inherit equally (or their descendants per stirpes) |
| No blood relatives | Crown (bona vacantia) |
A surviving spouse or civil partner has a fixed entitlement under the intestacy rules. This includes: all personal chattels, a statutory legacy (currently £322,000), and a life interest in half of any remaining residue. If there are no children or descendants, the spouse receives everything.
Children (including adopted children) inherit equally under the intestacy rules. Stepchildren do not automatically inherit. If a child predeceased the testator leaving children of their own (grandchildren of the deceased), those grandchildren take their parent's share "per stirpes" - by right of representation.
If there is no surviving spouse or children, the estate passes to parents in equal shares. If parents are deceased, it passes to siblings (or their descendants). If no siblings, to grandparents, then to uncles/aunts. If no blood relatives exist, the estate passes to the Crown as bona vacantia.
Unmarried partners do not inherit under the intestacy rules, no matter how long the relationship. This is a crucial reason for cohabiting couples to make wills. Claims under the Inheritance (Provision for Family and Dependants) Act 1975 may be possible, but this is uncertain and expensive.