Learning Outcomes
After reading this article, you will be able to identify and apply the legal requirements for a valid will or codicil, including statutory formalities, testamentary capacity, and the need for knowledge and approval. You will understand how to spot undue influence and the practical and ethical duties of solicitors in will preparation. This will equip you to answer SQE1-style MCQs on will validity and professional conduct in private client practice.
SQE1 Syllabus
For SQE1, you are required to understand the legal and practical requirements for valid wills and codicils, and the professional responsibilities of solicitors in will drafting. In your revision, focus on:
- the statutory formalities for valid wills and codicils (Wills Act 1837, s.9)
- the test for testamentary capacity (Banks v Goodfellow)
- the requirement for knowledge and approval of the will’s contents
- the prohibition of undue influence and duress
- the duties of solicitors when taking instructions, drafting, and supervising execution of wills
- the importance of avoiding conflicts of interest and maintaining professional standards
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 four statutory requirements for a valid will under s.9 of the Wills Act 1837?
- Which case sets out the test for testamentary capacity, and what are its three main elements?
- What steps should a solicitor take to minimise the risk of a will being challenged for undue influence?
- True or false? A will witnessed by a beneficiary is always invalid.
Introduction
A will is only valid if it complies with strict legal requirements. For SQE1, you must be able to identify when a will or codicil is valid, and understand the professional duties of solicitors in will preparation. This article covers the statutory formalities, the test for testamentary capacity, the need for knowledge and approval, the prohibition of undue influence, and the key practical and ethical duties of solicitors.
Statutory Formalities for Valid Wills and Codicils
A will (or codicil) must comply with the formal requirements in s.9 of the Wills Act 1837. Failure to meet any requirement will render the will invalid.
Key Term: codicil A codicil is 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.
The Four Formalities
A valid will must:
- Be in writing (handwritten, typed, or printed).
- Be signed by the testator (or by another person in the testator’s presence and at their direction).
- The testator’s signature must be made or acknowledged in the presence of two or more witnesses present at the same time.
- Each witness must sign or acknowledge their signature in the presence of the testator.
Key Term: testator The person making the will or codicil.
Key Term: attestation The act of witnessing the testator’s signature and signing the will as a witness.
Signature Requirements
The testator’s signature can be any mark intended as a signature, including initials or a thumbprint. If someone else signs for the testator, it must be at the testator’s direction and in their presence.
Witnessing
Both witnesses must be present at the same time when the testator signs or acknowledges their signature. The witnesses do not need to know the document is a will, but must intend to act as witnesses.
Key Term: attestation clause A statement in the will confirming that the statutory execution requirements have been met. It raises a presumption of due execution.
Worked Example 1.1
A testator signs their will in front of one witness. The second witness arrives later, and the testator acknowledges their signature in front of both witnesses, who then sign. Is the will valid?
Answer: Yes. The testator’s signature was acknowledged in the presence of both witnesses, who then signed in the testator’s presence.
Exam Warning
If a beneficiary or their spouse/civil partner acts as a witness, the gift to that beneficiary fails, but the will itself remains valid.
Testamentary Capacity
A will is only valid if the testator has capacity at the time of execution. The test for capacity is set out in Banks v Goodfellow.
Key Term: testamentary capacity The legal and mental ability to make a valid will, assessed at the time of execution.
The Banks v Goodfellow Test
The testator must:
- Understand the nature and effect of making a will.
- Know the extent of their property.
- Be able to consider the claims of those who might expect to benefit.
A person suffering from a mental disorder may still have capacity if the disorder does not affect their understanding of the will.
Worked Example 1.2
A client with mild dementia wishes to make a will. They can explain who their family are, what property they own, and what a will does. Is their will likely to be valid?
Answer: Yes, provided the dementia does not prevent them from understanding the will’s effect, their property, and the claims of potential beneficiaries.
Knowledge and Approval
The testator must know and approve the contents of the will. This is presumed if the testator had capacity and executed the will, unless there are suspicious circumstances.
Key Term: knowledge and approval The requirement that the testator understands and agrees to the contents of the will at the time of execution.
If the will is prepared by a major beneficiary or in unusual circumstances, the person propounding the will must prove knowledge and approval.
Worked Example 1.3
A will is drafted by the main beneficiary, who also arranges for the testator to sign. What should a solicitor do to ensure the will is valid?
Answer: The solicitor should ensure the testator reads or has the will read to them, confirms their understanding, and ideally obtains independent evidence (such as a contemporaneous note or medical opinion).
Freedom from Undue Influence and Duress
A will must reflect the testator’s free intentions. Undue influence or duress will invalidate a will or the affected gift.
Key Term: undue influence Pressure or coercion that overcomes the testator’s free will, resulting in dispositions they would not otherwise make.
Key Term: duress Actual or threatened harm or intimidation causing the testator to make a will against their wishes.
The burden of proof is on the person alleging undue influence. Mere persuasion is not enough; there must be evidence of coercion.
Worked Example 1.4
A frail testator changes their will to favour a carer after the carer threatens to withdraw care. Is the will valid?
Answer: No. If the carer’s threats overcame the testator’s free will, the will (or the relevant gift) is invalid for undue influence.
Solicitors’ Duties in Will Preparation
Solicitors must ensure that wills are valid and reflect the client’s true wishes. Failure to do so may result in professional negligence.
Taking Instructions
- Confirm the client’s identity.
- Assess capacity and, if in doubt, obtain medical evidence.
- Take instructions directly from the testator, ideally alone.
- Record all instructions and advice given.
Drafting and Execution
- Draft the will to reflect the client’s intentions clearly.
- Advise on legal and tax implications.
- Supervise execution if possible, ensuring all formalities are met.
- Warn against beneficiaries acting as witnesses.
Avoiding Conflicts and Maintaining Standards
- Do not act if there is a conflict of interest or risk of one.
- If the client wishes to benefit the solicitor or their family, recommend independent legal advice.
- Keep all information confidential.
Key Term: conflict of interest A situation where a solicitor’s own interests, or those of another client, may affect their ability to act solely in the client’s best interests.
Revision Tip
When acting for elderly or vulnerable clients, always consider the “golden rule”: obtain medical evidence of capacity and keep detailed notes.
Key Point Checklist
This article has covered the following key knowledge points:
- A valid will or codicil must comply with the statutory formalities in s.9 Wills Act 1837.
- The testator must have testamentary capacity at the time of execution.
- The testator must know and approve the contents of the will.
- The will must be free from undue influence or duress.
- Solicitors must take instructions directly, assess capacity, avoid conflicts, and supervise execution.
- Beneficiaries (or their spouses/civil partners) should not act as witnesses to gifts in their favour.
Key Terms and Concepts
- codicil
- testator
- attestation
- attestation clause
- testamentary capacity
- knowledge and approval
- undue influence
- duress
- conflict of interest
