Formal Requirements Flashcards
What are the formal requirements for a valid will?
Under Section 9 of the Wills Act 1837:
• In writing
• Signed by testator or on their behalf in presence and at their direction
• Signature shows intent to give effect to the will
• Signed/acknowledged in presence of two or more witnesses at same time
• Each witness signs or acknowledges signature in testator’s presence
Does the will have to be handwritten?
No, it can be handwritten, typed, or printed in any language.
Can a testator use any type of mark as a signature?
Yes, any mark may be a signature if intended as such, but usual signature is best to avoid doubt.
Can someone else sign the will on behalf of the testator?
Yes, if testator is unable to sign, they can authorize someone else to sign in their presence and at their direction.
Where should the testator’s signature be placed?
Normally at the end of the will. Signature elsewhere (e.g., beginning/middle) may cause legal complications.
How many witnesses are required for a valid will?
At least two witnesses must be present at the same time when testator signs or acknowledges signature.
Do witnesses need to know the contents of the will?
No, they don’t need to know it’s a will or its contents.
Can anyone act as a witness?
No. Witness must be physically and mentally present and not be:
• A minor
• Blind
• Drunk
• Of unsound mind
What details of the witnesses should be recorded?
• Full name
• Address
• Occupation
Useful in case the will is challenged.
Do witnesses need to sign the will in front of each other?
No, they must sign in presence of testator, not necessarily each other.
What is an attestation clause?
It describes the circumstances under which the will was executed.
Is an attestation clause legally required?
No, not mandatory, but it is best practice.
What is the benefit of an attestation clause?
It creates a presumption of due execution unless proven otherwise.
What happens if there is no attestation clause?
Proof of proper execution may be required, often through affidavit of due execution.
When should the “default” attestation clause be modified?
If will is executed under special circumstances (e.g., illiterate testator, signed on their behalf).
What is the solicitor’s duty regarding will execution?
Solicitor must ensure correct execution or may be liable for negligence.
Where should a solicitor arrange for the will to be executed?
Ideally in their office, so they can supervise execution.
What does Section 15 of the Wills Act 1837 state?
Any gift to an attesting witness (or their spouse) is void.
What happens if a beneficiary acts as a witness?
The will remains valid, but the beneficiary’s gift is void.
What is considered a ‘beneficiary’ for the purpose of Section 15?
Anyone who gains any benefit under the will.
Can a solicitor be negligent if a beneficiary witnesses the will?
Yes, if they fail to advise that the gift will be void.
Does Section 15 apply to professional executors who are to be remunerated for what they do?
No, under Trustee Act 2000, they can still be remunerated even if they witness the will.
If a beneficiary cannot inherit under Section 15, can they act as executor?
Yes, they can still act as executor even if they cannot inherit under Section 15.
How can the effect of Section 15 be avoided?
• Use two independent witnesses who aren’t beneficiaries
• Confirm the will with a codicil properly executed without the beneficiary as a witness
