Learning Outcomes
This article outlines the statutory requirements and practical considerations for the valid execution and witnessing of wills and codicils in England and Wales, including:
- precise meaning and SQE1 significance of execution, witnessing, attestation, and codicils in testamentary practice
- statutory elements of valid execution under section 9 Wills Act 1837, with emphasis on exam problem-spotting
- requirements for the simultaneous presence of witnesses and how line-of-sight and acknowledgment satisfy "presence"
- legal consequences of improper witnessing or execution, including void gifts to witnesses and impact on overall validity
- distinction between testator signing versus acknowledging a prior signature, and how witnesses can validly attest each
- role and evidential value of standard and special attestation clauses, and when additional probate evidence is needed
- execution and legal effect of codicils, including republication, interaction with existing wills, and impact on interpretation
- operation of privileged wills and temporary video-witnessing provisions, and how they modify normal section 9 rules
- practical drafting and exam strategies for avoiding common pitfalls in execution, witnessing, alterations, and codicil practice.
SQE1 Syllabus
For SQE1, you are required to understand the formal requirements for valid wills and codicils, with particular focus on execution and witnessing, with a focus on the following syllabus points:
- the statutory requirements for execution under the Wills Act 1837
- the rules for valid witnessing and attestation of wills and codicils
- the consequences of non-compliance with execution or witnessing formalities
- the definition and requirements for codicils
- the effect of improper witnessing or execution on the validity of testamentary documents
- the role and effect of attestation clauses and the presumption of due execution
- privileged wills and their exceptional form
- temporary rules that permitted video witnessing and the dates to which they applied.
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
- What are the minimum requirements for a valid will under the Wills Act 1837?
- Can a beneficiary or their spouse act as a witness to a will? What is the effect if they do?
- What is a codicil, and how must it be executed to be valid?
- True or false: A will signed by the testator in the presence of only one witness is valid if the witness also signs.
Introduction
A will or codicil is only valid if it complies with strict statutory formalities. The Wills Act 1837 sets out the requirements for execution and witnessing. If these rules are not followed, the document will not be admitted to probate, and the testator’s estate may be distributed contrary to their wishes. For SQE1, you must know the technical requirements and be able to apply them to practical scenarios.
The governing provision is section 9 of the Wills Act 1837 (as amended), which prescribes formality, and section 15, which addresses interested witnesses. Probate practice rules determine what evidence will be required when the face of the will or surrounding circumstances raise concerns. The same formalities apply to codicils, which are separate testamentary instruments intended to be read with the will.
Key Term: execution
The process of completing all formalities required by law for a will or codicil to be valid, including signing and witnessing.
Execution and Witnessing: The Statutory Requirements
A will (or codicil) must satisfy the following requirements to be valid:
- It must be in writing.
- It must be signed by the testator (or by another person in the testator’s presence and at their direction).
- The testator must intend their signature to give effect to the will.
- The signature must be made or acknowledged by the testator in the presence of at least two witnesses present at the same time.
- Each witness must either attest and sign the will, or acknowledge their signature, in the presence of the testator.
These requirements apply equally to codicils.
Writing Requirement
The will or codicil must be in writing. This includes handwritten, typed, printed, or other forms capable of permanent record (for example, Braille or shorthand). In practice, “writing” requires a physical medium rather than a purely electronic document. There is no mandatory use of paper, and some unusual media have historically been admitted to probate, but a pen-and-ink or printed document is standard. Pencil is discouraged as it may be seen as deliberative rather than final, and pencil alterations are treated with caution.
Key Term: codicil
A separate testamentary document that amends, adds to, or partially revokes an existing will. It must be executed with the same formalities as a will.
Signature by the Testator
The testator must sign the will. Any mark intended as a signature is sufficient (e.g., initials, a cross, a thumbprint, or a phrase identifying the testator), provided it is made with the intention of authenticating the document. The signature can appear anywhere; there is no longer a requirement that it be at the “foot or end,” though placement may be relevant to intention.
If the testator is unable to sign, another person may sign on their behalf, but only in the testator’s presence and at their direction. The direction can be verbal or non-verbal but must be clear and discernible. Best practice is that the person signing on the testator’s behalf should not be a beneficiary and should not act as a witness, to avoid suspicion and evidential complications.
Key Term: attestation
The act of witnessing the testator’s signature and signing the will as a witness, confirming that the formalities have been complied with.
Intention to Give Effect
The testator must intend their signature to give effect to the will. Intention is commonly inferred if the signature is applied as the final step and located after the dispositive provisions, but the law does not require a specific placement. If the signature is on an envelope or another document rather than the will itself, there may be insufficient intention unless the circumstances clearly demonstrate that the testator intended their signature to make the will operative.
Presence of Witnesses
The testator must sign or acknowledge their signature in the presence of at least two witnesses, both present at the same time. “Presence” requires a line of sight enabling the witnesses to see the act of signing or to see the signature being acknowledged, though they do not need to observe the content of the will and do not need to know it is a will.
A testator who signed earlier can meet the requirement by acknowledging that signature to two witnesses who are together in the same room at the time of acknowledgment. The witnesses need not sign immediately, but each must sign in the testator’s presence and attest to the testator’s signature or acknowledgment.
Witnesses’ Attestation and Signature
Each witness must sign the will (or acknowledge a pre-existing signature they have placed on the will) in the presence of the testator. The witnesses do not need to sign in each other’s presence, but the testator must be present to witness each attestation or acknowledgment. Witness signatures should be capable of identifying the witness, and adding an address and occupation is good practice. The statutory test is satisfied if the witness signs or acknowledges their signature to the testator, appropriately attesting the testator’s signing or acknowledgment.
Key Term: attestation clause
A statement in the will confirming that the statutory requirements for execution and witnessing have been complied with.
Writing, Signing, and Acknowledgment in Practice
The process can occur in stages while still meeting section 9:
- the testator signs in front of both witnesses (present together), then each witness signs in the testator’s presence (not necessarily at the same time); or
- the testator signs alone, later acknowledges that signature to both witnesses (who are present together), followed by each witness signing in the testator’s presence.
Witnesses do not need to understand the will’s contents, and no formal wording for attestation is required. However, sound drafting practice includes an attestation clause recording compliance, and special clauses are advisable in particular circumstances (for example, where the testator is blind or illiterate, or where someone signs for the testator).
Who Can Be a Witness?
Any person with sufficient understanding can act as a witness. A witness should be capable of comprehending that they are witnessing a signature and attest accordingly. There is no statutory prohibition on minors acting as witnesses, but this is poor practice because they may be difficult to locate later for evidence and questions can arise as to their understanding.
A beneficiary or their spouse/civil partner should not witness the will. If they do, any gift to the beneficiary is void under section 15 Wills Act 1837, but the will itself remains valid. The prohibition relates to taking benefit rather than acting as a valid witness. To avoid any suggestion of interest or undue influence, witnesses should be independent of the testator and beneficiaries.
Worked Example 1.1
A testator signs their will in the kitchen with their neighbour present. Later, in the living room, the testator asks their friend to sign as a witness, but the neighbour is not present. Is the will valid?
Answer:
No. Both witnesses must be present together when the testator signs or acknowledges their signature. Here, the two witnesses were not present at the same time for the testator’s signing or acknowledgment, so the will is invalid.
Worked Example 1.2
A testator asks their carer to sign the will on their behalf, as they are unable to write. The carer signs in the presence of the testator and two witnesses, who then sign in the testator’s presence. Is this valid?
Answer:
Yes. The will is validly executed if the signature is made by another person in the testator’s presence and at their direction, and all other formalities are complied with. Best practice is for the attestation clause to state that the will was signed by another person in the testator’s presence and at their direction.
Worked Example 1.3
A will is found with only the signatures of the testator and two witnesses, but no attestation clause. Can it be admitted to probate?
Answer:
Yes, if evidence is provided that the statutory formalities were complied with. The absence of an attestation clause does not invalidate the will, but it removes the presumption of due execution, so the probate registry may require witness evidence to prove due execution.
Worked Example 1.4
A testator makes a will in 2018 and a codicil in 2022, witnessed by two different people. The codicil adds a new legacy. Is the codicil valid, and what is the effect on the will?
Answer:
If the codicil is executed with the same formalities as a will, it is valid. A codicil republishes the will, confirming it as if made at the date of the codicil. The new legacy takes effect, and the will is treated as speaking from the codicil date for probate interpretation and practice.
Worked Example 1.5
The testator signed the will alone one week ago. Today, the testator gathers two neighbours together and states, while pointing to the signature, “That is my signature and this is my will.” Each neighbour then signs later in the day, each time with the testator present. Is the execution valid?
Answer:
Yes. Section 9 permits the testator to acknowledge a prior signature to two witnesses present at the same time. Each witness must then sign (or acknowledge their signature) in the testator’s presence, which occurred here.
Worked Example 1.6
A testator leaves £20,000 to Alex. One of the two witnesses to the will is Alex’s civil partner. What is the effect?
Answer:
The gift to Alex is void because Alex’s civil partner attested the will. The will remains valid and other gifts take effect. If Alex and the civil partner were merely engaged at the time of execution (not civil partners), the rule would not apply.
Attestation Clauses and Presumption of Due Execution
A well-drafted will includes an attestation clause. If present, there is a legal presumption that the will was properly executed. Typical clauses confirm that the testator signed the will and that both witnesses were present together when the testator signed or acknowledged their signature, and that the witnesses then signed in the testator’s presence.
Special attestation clauses are used to avoid later evidential issues:
- where the testator is blind or illiterate, the clause should record that the will was read over to the testator, or that the testator had it explained, and that the testator seemed to understand and approve the contents;
- where someone signs for the testator, the clause should record that the will was signed by another person in the testator’s presence and at their direction;
- where there are suspicious circumstances (e.g., the will prepared by a major beneficiary), careful attestation practice and contemporaneous records assist later proof of knowledge and approval.
If there is no attestation clause, or if the face of the will raises doubts (e.g., irregular signature placement, obvious alterations), the probate registry can require an affidavit of due execution (preferably from a witness) and may require corroborating evidence to admit the will to proof.
Consequences of Improper Execution or Witnessing
If any of the statutory requirements are not met, the will or codicil is invalid. Common errors include:
- Only one witness present when the testator signed or acknowledged the signature
- Witnesses not present together for the testator’s signing or acknowledgment
- Witnesses failing to sign (or to acknowledge their signature) in the testator’s presence
- Witnesses signing after the testator’s death
- Beneficiary or their spouse/civil partner acting as witness (the gift to them fails, but the will remains valid)
- Missing testator signature or lack of intention to give effect (e.g., preparatory drafts without evidence of finalization)
If the will is invalid, distribution proceeds under any earlier valid will. If none, the intestacy rules apply.
Exam Warning
If a will is not validly executed, it will not be admitted to probate. The estate will be distributed according to any earlier valid will, or if none, under the intestacy rules.
Codicils: Formalities and Legal Effect
A codicil is used to amend or supplement an existing will. To be valid, it must be executed with the same formalities as a will. This means it must be in writing, signed by the testator (or at their direction), and witnessed by two witnesses present at the same time for the testator’s signing or acknowledgment.
A valid codicil republishes the will, confirming it as if made at the date of the codicil. This can affect the interpretation of the will, especially where facts have changed since the will was first executed. Republishing can resolve dating ambiguities but may also alter how external evidence is assessed at probate. When drafting codicils, ensure the attestation clause properly records compliance and consider whether replacement of executors or updated administrative powers are needed.
Alterations Made After Execution
Although alteration and amendment are separate topics, they intersect with execution formalities. A post‑execution alteration to a will is only effective if it satisfies execution formalities as to that alteration: the testator must sign (or acknowledge a signature) near the alteration, and the same two witnesses must attest the alteration in the testator’s presence or a duly executed memorandum must refer to and authenticate the alteration. Unsigned or unwitnessed alterations are presumptively made after execution and will be ignored unless they fall within the narrow statutory exceptions (e.g., obliterations where the original words are no longer apparent on the original document). Good practice is to avoid handwritten post‑execution changes and instead use a codicil.
Attestation Evidence and Probate Practice
Even where a will appears properly executed, the probate registry may require additional evidence in particular situations:
- if there is no attestation clause, an affidavit of due execution is commonly required;
- if the testator was blind, illiterate, or did not sign by hand, evidence of knowledge and approval is usually requested;
- if there are indications of attempted revocation or physical damage (e.g., tearing or staple/paperclip marks suggesting missing pages), an affidavit of “plight and condition” must explain the state of the will and how it occurred.
Contemporaneous file notes recorded by the drafter, especially in cases where the testator’s capacity or understanding might later be challenged, can assist in smoothing probate and protecting against allegations of undue influence or lack of knowledge and approval.
Privileged Wills and Special Circumstances
Certain persons—soldiers in actual military service and mariners/seamen at sea—can make privileged wills that do not need to comply with section 9 formalities. A privileged will can even be oral if made with testamentary intent. These are rare and typically outside routine SQE1 scenarios, but knowing they exist helps you avoid incorrect conclusions about validity where the facts show a privileged status.
Remote Witnessing (Temporary Provisions)
In response to the COVID‑19 pandemic, legislation temporarily permitted remote witnessing of wills by video link, treating “presence” to include live video. This applied to wills made on or after 31 January 2020 and up to 31 January 2024. After that date, video witnessing ceased to be permitted and the standard physical presence rules resumed.
Where video witnessing was used within the permitted period:
- the testator had to sign (or acknowledge) in real time on video in the virtual presence of both witnesses, who could then sign the same physical document in the testator’s virtual presence in a subsequent session;
- pre‑recorded videos were not sufficient; and
- use of counterparts was strongly discouraged—best practice was to ensure all signatures are on the same physical will.
Any will executed by video within the permitted window remains valid if the process met the temporary requirements. Outside that window, the standard rules apply and physical presence is required.
Worked Example 1.7
In March 2021, during lockdown, a testator signed their will over a live video call with two witnesses viewing together. The will was then couriered to each witness, who signed it in separate video sessions in the testator’s virtual presence. Is this valid?
Answer:
Yes, provided each step complied with the temporary rules in force. The video witnessing provisions permitted live‑link presence between 31 January 2020 and 31 January 2024. After 31 January 2024, video witnessing is not permitted.
Common Pitfalls and Practical Advice
- Ensure both witnesses are physically present together when the testator signs or acknowledges their signature (outside the video‑witnessing period). “Popping in and out” or witnessing on different occasions without acknowledgment is fatal.
- Do not allow a beneficiary or their spouse/civil partner to witness the will. If they do, their gift fails even though the will remains valid.
- Use a clear attestation clause. For blind or illiterate testators, or where someone signs for the testator, include a special clause to evidence compliance and knowledge and approval.
- Avoid pencil and handwritten post‑execution changes. Use a codicil to make alterations.
- Keep contemporaneous notes of instructions, capacity and knowledge/approval, particularly where circumstances could later be considered “suspicious” (e.g., major gifts to the drafter or a caregiver).
- Where execution was irregular or there is no attestation clause, obtain witness statements early to satisfy the probate registry’s requirements.
Revision Tip
For SQE1, memorise the five key requirements for valid execution and witnessing under the Wills Act 1837. Practice applying them to fact patterns.
Key Point Checklist
This article has covered the following key knowledge points:
- The statutory requirements for valid execution and witnessing of wills and codicils under the Wills Act 1837
- The meaning and importance of execution, attestation, and attestation clauses
- The effect of improper execution or witnessing on validity
- The requirements for valid codicils and their legal effect, including republication
- The risks of allowing beneficiaries or their spouses/civil partners to act as witnesses and the effect on gifts
- How alterations made after execution must be authenticated to be effective
- Probate practice where additional affidavits may be required to prove due execution, knowledge and approval, or “plight and condition”
- The use of privileged wills and the temporary remote witnessing provisions and their end date
Key Terms and Concepts
- execution
- codicil
- attestation
- attestation clause