Learning Outcomes
After studying this article, you will be able to identify and explain the legal requirements for testamentary intention in wills and codicils. You will understand the difference between intention, capacity, and knowledge and approval, and be able to apply the correct legal tests to determine whether a will is valid. You will also be able to spot common exam pitfalls, including undue influence and lack of intention, and answer SQE1-style questions on this topic.
SQE1 Syllabus
For SQE1, you are required to understand the legal rules and principles governing the intention to make a will or codicil. Focus your revision on:
- the requirement for testamentary intention as a separate element of will validity
- the distinction between intention, capacity, and knowledge and approval
- the legal test for intention and how it is established in practice
- the effect of undue influence, fraud, or mistake on intention
- how the courts approach suspicious circumstances and challenges to intention
- practical steps to ensure a will reflects genuine intention
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 is the difference between testamentary capacity and testamentary intention?
- True or false? A will is valid if the testator signs it without knowing its contents.
- What is the legal effect if a will is made as a result of undue influence?
- What must be shown to prove that a testator had the intention to make a will?
Introduction
A valid will or codicil must reflect the genuine intention of the testator to dispose of their property on death. Intention is a distinct legal requirement, separate from capacity and formalities. For SQE1, you must be able to identify when intention is present, how it is proved, and what can invalidate it.
Testamentary intention: the legal requirement
A will is only valid if the testator intended the document to operate as their will. This means the testator must have understood that they were making a will (or codicil) and wanted it to take effect on death. Intention is assessed at the time the will is executed.
Key Term: testamentary intention The testator’s conscious and voluntary decision that a document is to operate as their will, disposing of their property on death.
Distinguishing intention from capacity and knowledge/approval
Testamentary intention is not the same as testamentary capacity. A person may have capacity but lack intention (for example, if they sign a document not realising it is a will). Similarly, intention is not the same as knowledge and approval, which requires the testator to understand and accept the contents of the will.
Key Term: knowledge and approval The testator’s understanding and acceptance of the contents of the will at the time of execution.
Key Term: undue influence Coercion or pressure that overcomes the testator’s free will, resulting in a will that does not reflect their true wishes.
How is intention established?
The courts presume intention if the testator signs a document that appears to be a will and complies with the formalities. However, this presumption can be rebutted by evidence that the testator did not intend the document to be a will (for example, if they thought it was a draft or notes).
Worked Example 1.1
Scenario:
Mr. Patel signs a document titled "Will" in the presence of two witnesses. He believes he is signing a draft for his solicitor to review, not his final will. Is there testamentary intention?
Answer: No. If Mr. Patel did not intend the document to operate as his will, there is no testamentary intention and the document is not valid as a will.
Knowledge and approval: a related but distinct requirement
Even if intention is present, the will is only valid if the testator knows and approves its contents. This means the testator must understand what the will says and agree to it. If the testator signs without reading or having the will read to them, or is misled about its contents, the will may be invalid.
Worked Example 1.2
Scenario:
Ms. Green signs her will after it is read aloud to her by her solicitor. She confirms she understands and wishes it to take effect. Is knowledge and approval present?
Answer: Yes. Ms. Green’s actions show both intention and knowledge and approval.
Undue influence, fraud, and mistake
A will is not valid if the testator’s intention is overborne by undue influence, or if the will is the result of fraud or mistake. The law distinguishes between persuasion (which is allowed) and coercion (which is not). The burden of proving undue influence or fraud lies on the person challenging the will.
Exam Warning
If a will is made as a result of force, fear, fraud, or undue influence, it will not be admitted to probate. The challenger must prove that the testator’s free will was overborne.
Suspicious circumstances and challenges to intention
Where there are suspicious circumstances—such as a major beneficiary preparing the will, or the testator being vulnerable—the court will require positive evidence that the testator intended the will to take effect and knew and approved its contents. The court may refuse probate if not satisfied.
Worked Example 1.3
Scenario:
An elderly testator leaves their entire estate to a new carer who arranged for the will to be drafted and signed. The family challenge the will, alleging undue influence.
Answer: The court will scrutinise the circumstances closely. If there is evidence of coercion or lack of intention, the will may be set aside.
Practical steps to ensure intention
Solicitors should always ensure that the testator understands the nature and effect of the will, and that it reflects their wishes. This may involve reading the will aloud, explaining its terms, and making a detailed attendance note. If the testator is elderly or unwell, consider obtaining a medical opinion and having an independent witness present.
Revision Tip
Where there is any doubt about intention or capacity, obtain a contemporaneous medical opinion and keep a clear record of the testator’s instructions and understanding.
Key Point Checklist
This article has covered the following key knowledge points:
- Testamentary intention is a separate legal requirement for a valid will or codicil.
- Intention means the testator wanted the document to operate as their will.
- Intention is distinct from capacity and knowledge and approval.
- The presumption of intention can be rebutted by evidence of mistake, lack of understanding, or external pressure.
- Undue influence, fraud, or coercion can invalidate a will for lack of genuine intention.
- Solicitors should take practical steps to ensure the will reflects the testator’s true wishes.
Key Terms and Concepts
- testamentary intention
- knowledge and approval
- undue influence
