Will Validity - Formal Requirements Flashcards
What are the four formal requirements for a valid will?
(a) The will must be in writing, and signed by the testator (or someone else in their presence and at their direction);
(b) The testator must intend their signature to give effect to the will;
(c) The signature must be made or acknowledged in the presence of two or more witnesses present at the same time;
(d) Each witness must either sign or acknowledge their signature in the presence of the testator.
Can someone else sign the will on behalf of the testator?
Yes, if it is done in the testator’s presence and at their direction.
What constitutes a ‘signature’?
Any mark intended by the testator to give effect to the will. However, using a normal signature is best to avoid doubt.
How many witnesses are required for a valid will?
At least two witnesses must be present at the same time when the testator signs or acknowledges their signature.
Must witnesses sign in each other’s presence?
No. Each must sign in the presence of the testator but not necessarily in each other’s presence.
Who can be a witness?
Witnesses must be physically and mentally capable. Minors, blind individuals, or those intoxicated should not witness wills.
What is the purpose of an attestation clause?
To describe the circumstances of execution. It can raise a presumption that the will was validly executed (presumption of due execution).
Is an attestation clause legally required?
No, but it is good practice. Without it, additional proof (e.g. witness affidavit) may be required.
What does s 15 Wills Act 1837 state? Witness-Beneficiary Rule?
A gift to a witness or their spouse/civil partner is void. The will remains valid, but the beneficiary cannot inherit.
Does s 15 affect the appointment of a witness as executor?
No. The appointment as executor still stands, even if the witness cannot take a gift.
What if there are other independent witnesses or a codicil?
The gift may still be valid if there are at least two unaffected witnesses or if the will is confirmed in a properly executed codicil.
Can a professional executor who is entitled to charge witness a will?
Yes. s 15 does not affect their right to be paid for acting as executor.
