Validity of wills and codicils - Formal requirements under t...

Learning Outcomes

This article outlines the formal requirements and key exam issues on the due execution and validity of wills and codicils under the Wills Act 1837, including:

• Statutory formalities for due execution: writing, signature, and witnessing, and how these are applied in problem questions
• The purpose of execution formalities in ensuring authenticity, capacity, and freedom from undue influence
• How to distinguish valid from invalid execution and evaluate the evidential value of different attestation clauses
• The presumption of due execution, how it operates in probate practice, and when additional affidavits or evidence are required
• Rules on post‑execution alterations under section 21 Wills Act 1837, including signatures, initials, and validating memoranda
• Treatment of obliterations, interlineations, marginal memoranda, and conditional revocation scenarios
• The concept, formalities, and republication effect of codicils, with particular focus on curing a void gift to a witness
• Core routes to revocation and the effects of marriage/civil partnership, divorce/dissolution, and destruction with intent
• Use and interpretation of “in contemplation of marriage” clauses and the doctrine of dependent relative revocation
• Common SQE1 traps and best‑practice drafting tips, such as avoiding gifts to witnesses and ensuring clear signature placement and valid witnessing arrangements

SQE1 Syllabus

For SQE1, you are required to understand the formal requirements for the due execution and validity of wills and codicils under the Wills Act 1837, with a focus on the following syllabus points:

• the statutory requirements for due execution of a will (writing, signature, and witnessing) under the Wills Act 1837 s 9
• evidential consequences of attestation clauses and when the presumption of due execution applies
• special attestation clauses (e.g., blind/illiterate/non‑English speaking testators) to support knowledge and approval
• rules on alterations after execution (Wills Act 1837 s 21): signatures/initials near the alteration or a signed memorandum
• codicils: formalities, republication effect, and curing void gifts to witnesses
• revocation by later instrument, destruction with intent, marriage/civil partnership, and divorce/dissolution
• gifts to witnesses or their spouses/civil partners: void gifts (Wills Act 1837 s 15) but will remains valid
• privileged wills: narrow exceptions for soldiers on active service and mariners/seamen at sea (no formalities required)
• current position on witnessing: physical presence required (temporary video witnessing measures have expired)

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.

1. What are the minimum formal requirements for a valid will under the Wills Act 1837?
2. If a beneficiary acts as a witness to a will, what is the effect on their gift and the validity of the will?
3. How must an alteration to a will be executed to be effective?
4. What is a codicil, and what formalities must it satisfy to be valid?

Introduction

A will is only valid if it complies with the strict formal requirements set out in the Wills Act 1837. These rules are designed to ensure that a testator’s wishes are clear and genuine, and to prevent fraud or undue influence. For SQE1, you must be able to identify the statutory requirements for valid wills and codicils, understand the effect of non-compliance, and apply these principles to practical scenarios. You should also be ready to address evidential issues at probate (e.g., proving due execution) and to recognise exceptional categories (such as privileged wills) and temporary rules that no longer apply (e.g., pandemic video‑witnessing).

Statutory Formalities for Valid Wills

The Wills Act 1837, as amended, sets out the mandatory requirements for a valid will. All of the following elements must be satisfied:

Writing

A will must be in writing. There is no prescribed form, but the document must be a permanent record of the testator’s intentions. The writing may be typed, handwritten, in Braille or shorthand, and on any material; courts have admitted unusual media where authenticity is clear. Using pencil raises a rebuttable presumption that pencil additions were deliberative only; they will be excluded from probate absent evidence of a final intention.

Key Term: will
A legal document by which a person (the testator) sets out how their property is to be distributed on death.

Key Term: testator
The person making the will.

Exception: privileged wills. A soldier on actual military service or a mariner/seaman “at sea” may make a valid will informally—even orally—provided the statement clearly shows an intention to dispose of property on death. Privileged status turns on the circumstances when the will was made.

Signature

The will must be signed by the testator, or by another person in the testator’s presence and at their direction.

Key Term: signature
Any mark, initials, or symbol intended by the testator to authenticate the will.

The signature does not have to be at the end of the will, but it must be clear that the testator intended by their signature to give effect to the document as their will. A signature may appear anywhere (e.g., at the top or in the margin) if intended to validate the will as one transaction. Non‑standard signatures have been upheld where the intention is clear (e.g., “Your loving mother”, thumbprint, initials). If someone signs for the testator, the testator’s “direction” must be positive and discernible (verbal or unequivocal non‑verbal); mere acquiescence is insufficient. The person signing may write their own name or the testator’s name, but the signing must be contemporaneous and in the presence of the testator.

Signature completion matters: the mark relied upon must reflect what the testator intended to be their completed signature; an unfinished mark intended to continue later may fail.

Witnessing

The testator’s signature must be made or acknowledged in the presence of at least two witnesses present at the same time. Each witness must then sign the will or acknowledge their signature in the presence of the testator (but not necessarily in the presence of the other witness). The witnesses must be physically present so they can see the testator sign or hear them acknowledge the signature in real time. “Line of sight” suffices; witnessing through a window has been accepted where all parties could see/sign and acknowledge contemporaneously.

Current position: “presence” means physical presence. Temporary pandemic measures permitting video witnessing have expired; remote/video witnessing is not presently valid.

Acknowledgement timing and sequence can be flexible within the statutory framework. For example, if the testator signed earlier, they can later acknowledge that signature to both witnesses present together; each witness must then sign in the testator’s presence (they need not sign together, but any witness signing outside the testator’s presence must later acknowledge their signature to the testator).

Key Term: witness
A person who observes the testator sign or acknowledge the will and then signs the will themselves to confirm this.

Key Term: attestation
The act of witnessing the testator’s signature and signing the will to confirm this.

Best practice for multi‑page wills includes stapling pages together and initialling each page to deter later tampering, but neither is legally required. What matters is compliance with s 9 Wills Act 1837.

Attestation Clause

Although not required by law, a well-drafted will includes an attestation clause confirming that the statutory formalities were complied with. This clause raises a presumption of due execution, making it easier to prove the will’s validity if challenged.

Key Term: attestation clause
A statement in the will confirming that the will was signed and witnessed in accordance with the Wills Act 1837.

A standard clause might read: “Signed by the testator in our joint presence and then by us in theirs.” Where the testator is blind, illiterate, or does not read English, a special attestation clause should record that the will was read over or explained and the testator seemed to understand and approve its contents. Such clauses support both due execution and knowledge and approval and reduce the likelihood of the probate registry requiring affidavits.

If an attestation clause is absent or defective, the probate registry may require an affidavit of due execution from a witness or other person present to confirm compliance. It may also ask for evidence of the date of execution if the will is undated or bears inconsistent dates.

Who Can Be a Witness?

Any person of sufficient understanding can act as a witness, including minors (if capable of understanding the significance of the act). However, a blind person cannot be a witness, as they cannot see the testator sign or acknowledge the signature. Deaf or mute witnesses can attest if they understand and are present at the execution; interpreters may assist, but the witnesses themselves must meet the presence and understanding requirements. Executors, solicitors, and beneficiaries may technically act as witnesses, but the consequences for gifts to them must be addressed (see below).

Gifts to Witnesses

If a beneficiary or their spouse/civil partner acts as a witness, the gift to that person is void, but the rest of the will remains valid. The prohibition applies at the time of attestation: a fiancé/fiancée who later marries the beneficiary does not retrospectively void the gift. Appointments (e.g., as executor or trustee) are unaffected by witnessing.

Key Term: void gift to witness
A gift in a will to a person (or their spouse/civil partner) who acts as a witness is invalid, but the will itself is not invalidated.

A later codicil, properly executed with different witnesses, can re‑grant the gift to the same person; the codicil republishes the will and can therefore cure a previously void gift to a witness.

Worked Example 1.1

A testator signs their will in the presence of two witnesses, one of whom is also a beneficiary under the will. What is the effect on the will and the beneficiary’s gift?

Answer:
The will is valid, but the gift to the beneficiary-witness is void. The rest of the will takes effect as written.

Signature by Another Person

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 same witnessing requirements apply. Record the circumstances clearly (e.g., an attendance note), and avoid beneficiaries performing the signature if possible to minimise later evidential challenges.

Worked Example 1.2

A testator is physically unable to sign their will. They ask their friend to sign for them, in the presence of the testator and two witnesses. Is the will valid?

Answer:
Yes, provided the friend signs in the testator’s presence and at their direction, and the witnessing requirements are met.

Alterations to Wills

Any alteration to a will after execution is only valid if executed with the same formalities as the original will (i.e., signed by the testator and two witnesses). If not, the alteration is ignored and the will stands as originally executed, unless the original wording is no longer apparent—in which case the alteration is effective only if the testator intended to revoke that part.

Key Term: alteration
A change made to a will after execution, which must be executed with the same formalities as the will to be valid.

Section 21 Wills Act 1837 governs post‑execution alterations:

• signed/initialled alterations: initials of the testator and both witnesses opposite or near the change can suffice; alternatively, a signed memorandum at the end of the will identifying the alterations can validate them (provided the memorandum is executed like a will)
• obliterations: if the original wording beneath the obliteration is still apparent on ordinary inspection, the original wording is admitted to probate and the obliteration is disregarded; if the wording is not apparent and the testator intended to revoke that part, the obliteration revokes that wording even without attestation
• conditional revocation: where the testator obliterates a sum intending to substitute a new sum, but the substitution is not validly executed, the court may infer a conditional intention to revoke only if the substitution is effective; in that case the original wording may be proved by extrinsic evidence and admitted

Presumption: an alteration appearing on the face of a will is presumed to have been made after execution unless internal or external evidence shows it was made before execution and was therefore part of the will when it was executed.

Worked Example 1.3

A testator crosses out a legacy in their will and writes in a new amount, but does not sign or have the alteration witnessed. What is the effect?

Answer:
The alteration is invalid. The original legacy remains effective, unless the original wording is completely obliterated and cannot be read, in which case that part of the will is treated as revoked.

Codicils

A codicil is a document that amends, adds to, or revokes part of a will. A codicil must be executed with the same formalities as a will (writing, signature, and two witnesses). A valid codicil republishes the will, confirming it as if made at the date of the codicil.

Key Term: codicil
A supplementary document executed with the same formalities as a will, used to amend, add to, or revoke part of a will.

Practical effects of republication include:

• the will is read as if executed on the codicil date (relevant to “speaks from” rules and vesting where timing matters)
• a codicil can cure a previously void gift to a witness by re‑granting the gift when the codicil is properly witnessed by others
• a codicil should refer clearly to the earlier will(s) and, if appropriate, confirm unamended provisions

Worked Example 1.4

A testator makes a will in 2015 and a codicil in 2020 changing the executor. The codicil is properly executed. What is the effect?

Answer:
The codicil is valid and republishes the will as if made in 2020, with the new executor.

Revocation of Wills

A will may be revoked by:

• Marriage or civil partnership (unless the will was made in contemplation of that event)
• A later will or codicil expressly or impliedly revoking the earlier will
• A written declaration of revocation executed with the same formalities as a will
• Physical destruction of the will by the testator (or someone in their presence and at their direction) with the intention to revoke

Key Term: revocation
The legal act of cancelling a will, making it of no effect.

Marriage/civil partnership: absent a valid express clause stating the will is made in contemplation of marriage/civil partnership to a named person, a later marriage/civil partnership revokes the will automatically. The clause should identify the intended spouse/civil partner specifically; general statements are insufficient.

Divorce/dissolution/nullity: gifts to a former spouse/civil partner and appointments of them as executor/trustee are treated as if the former spouse/civil partner died on the date of the final order. The remainder of the will stands. Separation has no automatic effect. A contrary intention expressed in the will can preserve such gifts/appointments.

Destruction: revocation by destruction requires both the act (burning, tearing, or otherwise destroying) and the intention to revoke. Writing “cancelled” across the will or drawing lines through parts is not sufficient unless it amounts to destruction of a material part (e.g., signatures) and demonstrates a clear revocatory intent. If another person destroys the will, it must be in the testator’s presence and at their direction.

Exam Warning

If a testator destroys a will intending to revoke it, but does so only on the condition that a new will is valid, and the new will is invalid, the doctrine of dependent relative revocation may apply to revive the earlier will. Always check the testator’s intention.

Revision Tip

Always check that every alteration or codicil is executed with the same formalities as a will. If in doubt, advise the client to execute a new will. Include an appropriate attestation clause to engage the presumption of due execution, and consider special clauses where the testator is blind/illiterate or the will is in a language they do not read.

Worked Example 1.5

A testator signs a will in front of one witness. Ten minutes later, a second person enters the room. The testator acknowledges the earlier signature in the presence of both witnesses; each witness then signs, but Witness 2 signs while the testator briefly leaves the room and later acknowledges their signature to the testator. Is the will validly executed?

Answer:
Yes. The testator’s signature was acknowledged in the presence of two witnesses present at the same time, and each witness signed or acknowledged their signature in the presence of the testator. Witnesses need not sign together or in each other’s presence.

Worked Example 1.6

During active service, a soldier says to a colleague, “If I don’t make it, make sure my sister gets all my belongings.” The soldier dies the next day. There is no written will. Does a valid will exist?

Answer:
Yes. As a privileged will, the soldier’s oral statement can take effect, provided it clearly indicates an intention to dispose of property on death. The normal formalities (writing, signature, witnessing) do not apply to privileged wills.

Key Point Checklist

This article has covered the following key knowledge points:

• The statutory requirements for a valid will: writing, signature, and witnessing by two witnesses present at the same time.
• The effect of non-compliance: the will is invalid and the estate passes by intestacy.
• The evidential value of attestation clauses and the presumption of due execution; when special clauses are prudent.
• Who can witness and common pitfalls: blind individuals cannot witness; gifts to witnesses or their spouses/civil partners are void.
• Codicils must be executed like wills and have the effect of republication; they can cure a previously void gift to a witness.
• Alterations after execution require the same formalities as a will; otherwise they are ignored unless the original wording is obliterated beyond ordinary inspection and revocatory intent is shown.
• Revocation can occur by marriage/civil partnership (unless made in contemplation), divorce/dissolution (partial automatic effect), later will/codicil or written declaration, and destruction with intent.
• Privileged wills are narrow exceptions where ordinary formalities do not apply.
• Current law requires physical presence for witnessing; temporary video‑witnessing measures have expired.

Key Terms and Concepts

• will
• testator
• signature
• witness
• attestation
• attestation clause
• void gift to witness
• alteration
• codicil
• revocation