Validity of wills and codicils - Solicitors' duties in will ...

Learning Outcomes

This article outlines the validity of wills and codicils and the professional responsibilities of solicitors in will preparation, including:

• Statutory formalities for execution under s.9 Wills Act 1837, focusing on writing, signature, attestation, and common pitfalls likely to appear in SQE1 scenarios
• The test for testamentary capacity under Banks v Goodfellow, how it interacts with the Mental Capacity Act 2005, and how capacity is evidenced in practice
• The requirement for knowledge and approval, the evidential presumptions supporting it, and how to address suspicious circumstances such as major beneficiary involvement
• Undue influence and duress in probate, the high burden of proof, and how these challenges differ from undue influence in lifetime transactions
• The effect of witnessing by beneficiaries or their spouses/civil partners under s.15 Wills Act 1837, and the impact on the validity of particular gifts and the will as a whole
• Privileged wills under s.11 Wills Act 1837, their limited application to soldiers and mariners, and how they may arise in exam fact patterns
• Presumptions and burdens of proof relating to capacity, due execution, and knowledge and approval, including when affidavits or further evidence are required by the probate registry
• The “golden rule” and best-practice documentation when acting for elderly or vulnerable clients, including obtaining medical evidence and detailed attendance notes
• Practical and ethical duties of solicitors in taking instructions, drafting, advising on assets passing outside the estate, supervising execution, and minimising negligence risk

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, with a focus on the following syllabus points:

• 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
• privileged wills (Wills Act 1837, s.11) and their limited scope
• the impact of witnesses who are beneficiaries or spouses/civil partners (Wills Act 1837, s.15)
• the role of attestation clauses and probate registry requirements where execution is questioned (NCPR)

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 four statutory requirements for a valid will under s.9 of the Wills Act 1837?
2. Which case sets out the test for testamentary capacity, and what are its three main elements?
3. What steps should a solicitor take to minimise the risk of a will being challenged for undue influence?
4. 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. It also addresses privileged wills, gifts witnessed by beneficiaries, presumptions applied by the probate registry, and practical steps solicitors must take to reduce the risk of later challenges, including when acting for elderly or vulnerable clients.

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:

1. Be in writing (handwritten, typed, or printed).
2. Be signed by the testator (or by another person in the testator’s presence and at their direction).
3. The testator’s signature must be made or acknowledged in the presence of two or more witnesses present at the same time.
4. Each witness must sign or acknowledge their signature in the presence of the testator.

In addition, s.9 requires that it appears the testator intended their signature to give effect to the will. The witnesses need not know the document is a will, but they must intend to act as witnesses.

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. The position of the signature is not prescribed by statute, but its placement should make clear the testator intended to give effect to the will. A signature the testator deliberately completes, even if brief or incomplete in form, may suffice if their intention to execute is clear.

If someone else signs for the testator, it must be at the testator’s direction and in their presence. “Direction” requires a positive, discernible instruction (which may be verbal or non-verbal but must be clear); mere acquiescence or passive acceptance is insufficient. The person signing may sign using the testator’s name or their own name and should clarify that they are signing on the testator’s behalf.

Witnessing

Both witnesses must be present at the same time when the testator signs or acknowledges their signature. Each witness must then sign (or later acknowledge their signature) in the presence of the testator, although witnesses do not need to sign in each other’s presence. Presence requires physical presence; temporary pandemic measures permitting remote witnessing expired and are no longer in force, so witnessing by video link is not currently valid.

The witnesses do not need to know the document is a will, but they must be aware they are witnessing the testator’s signature (or its acknowledgment). Practical care should be taken to ensure a clear line of sight when signatures are made or acknowledged.

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.

An attestation clause is strongly recommended. If absent or defective, the probate registry will typically require evidence of due execution (such as an affidavit or witness statement, preferably from one of the attesting witnesses). Special attestation clauses should be used where the testator is blind, illiterate, or does not read English, to evidence knowledge and approval and reduce the need for further proof.

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.

This rule under s.15 Wills Act 1837 renders the gift “utterly null and void” as a matter of public policy to maintain witness impartiality. The beneficiary-witness (or spouse/civil partner witness) remains a competent witness; only the gift is affected. If there are at least two other valid, non-beneficiary witnesses, the beneficiary who also witnesses is unnecessary and the gift may nevertheless stand.

Worked Example 1.2

A will gifts £20,000 to Beatrice. Three people witness the will: Beatrice, her friend, and her neighbour. Are Beatrice’s gift and the will valid?

Answer:
The will is valid. Because there are two other valid witnesses, Beatrice’s attestation is unnecessary and her gift does not fail.

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. Capacity is time-specific; a lucid interval can suffice if the Banks v Goodfellow elements are met at execution. The Mental Capacity Act 2005 does not displace the Banks v Goodfellow test for wills; courts continue to apply Banks v Goodfellow to testamentary capacity.

The burden of proof is on the person propounding the will, but once a will is duly executed and appears rational, capacity is usually presumed. If capacity is genuinely in doubt, the “golden rule” suggests obtaining contemporaneous medical evidence and, where possible, having a medical practitioner witness the will. Solicitors should record their own assessment of capacity and the reasons supporting it.

Worked Example 1.3

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.

Worked Example 1.4

An 89-year-old testatrix in hospital wishes to change her will significantly. The solicitor suspects capacity may later be challenged. What steps should the solicitor take?

Answer:
Follow the golden rule: arrange for a doctor to assess capacity and provide a written opinion, consider having the doctor act as an attesting witness, and make detailed file notes evidencing the Banks v Goodfellow elements and the testatrix’s reasoning.

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.

Suspicious circumstances include where the will is prepared by or strongly influenced by a major beneficiary, where the dispositions are unusual or exclude expected beneficiaries without explanation, or where the testator is blind, illiterate, or lacks English proficiency. In such cases, the person propounding the will must prove knowledge and approval with independent evidence, such as reading-over by the solicitor, the testator confirming understanding, special attestation clauses, translation by an independent interpreter, and detailed contemporaneous notes.

If the probate registry has concerns, it may require an affidavit confirming knowledge and approval (for example, where the testator was blind or did not read English). Using a special attestation clause for such circumstances can avoid the need for further evidence at the grant stage.

Worked Example 1.5

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). Use a suitable attestation clause and consider seeing the testator alone to test their understanding and free intention.

Worked Example 1.6

A blind testator executes a will with substantial changes benefiting a new acquaintance. How should knowledge and approval be evidenced?

Answer:
Use a special attestation clause stating the will was read over and explained to the testator, and that they appeared to understand and approve it. Record a full attendance note of the reading-over, have an independent person present if possible, and consider a medical opinion if capacity is borderline.

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. There is no presumption of undue influence in probate (unlike certain lifetime transactions); mere persuasion, appeals to affection or gratitude, or advice are not enough. Coercion must be shown: the testator must be driven to act against their own free will. Evidence might include threats to withdraw care, isolation from advisers, or the beneficiary controlling access to the testator and the execution process.

Where only part of the will is tainted by undue influence or duress, that gift may fail while the remainder stands if severable.

Worked Example 1.7

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.

Worked Example 1.8

A nephew repeatedly urges his aunt to leave him her house and arranges transport to the solicitor’s office, but the aunt freely discusses and confirms the changes with the solicitor alone. Is undue influence likely?

Answer:
Unlikely. Persuasion or assistance does not amount to undue influence. The solicitor’s separate meeting and the aunt’s independent confirmation of her wishes support free intention.

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. Courts recognise duties owed not only to testators but, in certain circumstances, to disappointed beneficiaries where negligent will preparation defeats intended gifts. Robust processes and records reduce risk.

Taking Instructions

• Confirm the client’s identity.
• Assess capacity and, if in doubt, obtain medical evidence.
• Take instructions directly from the testator, ideally alone, especially where a beneficiary or carer is involved.
• Record all instructions and advice given, including reasons for dispositions and any departures from prior wills.
• Establish what property the client owns and in what capacity:
  • clarify joint ownership (joint tenants vs tenants in common), as survivorship can defeat intended gifts;
  • identify assets that pass outside the estate (e.g. nominated pension death benefits, life policies written in trust, joint bank accounts) and advise accordingly.
• Consider earlier wills and codicils and discuss revocation or amendment strategy.
• Ensure language or literacy barriers are addressed (independent interpreter, reading-over).
• Avoid taking instructions from third parties; instructions must come from the client or an authorised representative.

Drafting and Execution

• Draft the will to reflect the client’s intentions clearly.
• Include a revocation clause and appropriate administrative provisions.
• Add a standard attestation clause and special clauses where needed (e.g. blind or non-English-reading testators).
• Advise on legal and tax implications, including gifts to charity, survivorship, and assets passing outside the estate.
• Offer to supervise execution at the office or attend the client; if the client executes without supervision, send clear written instructions on signing and witnessing, and invite them to return the executed will for checking.
• Supervise execution if possible, ensuring all formalities are met (physical presence of witnesses, signatures and acknowledgments).
• Warn against beneficiaries or their spouses/civil partners acting as witnesses.
• Do not allow “conditional execution” arrangements or informal alterations; if changes are needed after execution, use a codicil executed with s.9 formalities.
• If the will is returned after execution, check it carefully: confirm the testator’s signature, witness details, and that no beneficiary or spouse/civil partner witnessed a gift benefiting them.

Avoiding Conflicts and Maintaining Standards

• Do not act if there is an own-interest conflict or a significant risk of one.
• If the client wishes to benefit the solicitor or their family, recommend independent legal advice; cease acting if independent advice is refused and the conflict cannot be managed.
• Keep all information confidential and comply with anti-money laundering obligations.
• Act with reasonable speed, particularly where there is a risk of imminent death; agree realistic timeframes and prioritise urgent instructions.
• Maintain comprehensive contemporaneous notes of meetings, capacity assessments, knowledge and approval steps, and execution.

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.

Worked Example 1.9

A client instructs: “Leave my share of our home to my sister.” The home is owned as beneficial joint tenants with the client’s mother. The will is executed validly. After death, how is the home held?

Answer:
The client’s beneficial share passes by survivorship to the mother. The gift in the will of the “share of our home” fails for want of subject matter, as there was no distinct share to pass under the will. The solicitor should have advised about severing the joint tenancy if the client intended a testamentary gift.

Key Term: privileged will
A will made by a soldier on actual military service or by a mariner or seaman at sea; it can be informal (including oral) if the intention to dispose of property on death is clear.

Although rare, privileged wills under s.11 Wills Act 1837 can be valid without s.9 formalities. Solicitors should recognise when privileged status may apply and still record evidence of intention.

Revision Tip

When acting for elderly or vulnerable clients, always consider the “golden rule”: obtain medical evidence of capacity and keep detailed notes. Where suspicious circumstances exist, meet the client alone, read the will over, and use special attestation clauses to evidence knowledge and approval.

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, including intention to give effect by signature and physically present witnesses.
• Attestation clauses raise a presumption of due execution; absent or defective clauses may require affidavit evidence.
• The testator must have testamentary capacity at the time of execution (Banks v Goodfellow) and capacity is presumed for a duly executed rational will unless rebutted.
• The testator must know and approve the contents of the will; suspicious circumstances require proof with independent evidence.
• The will must be free from undue influence or duress; coercion—not mere persuasion—must be proved by the challenger.
• Beneficiaries (or their spouses/civil partners) should not act as witnesses to gifts in their favour; the gift fails under s.15, but the will remains valid.
• Privileged wills (s.11) can be made informally in limited cases (soldiers on actual service; mariners/seamen at sea).
• Solicitors must take instructions directly, assess capacity, avoid conflicts, advise on assets passing outside the estate, and supervise execution or give clear written execution guidance; they should document knowledge and approval steps and act with appropriate speed.
• Practical probate issues include the registry’s approach to due execution, date, knowledge and approval, and “plight and condition” of the will where alterations or damage are apparent.

Key Terms and Concepts

• codicil
• testator
• attestation
• attestation clause
• testamentary capacity
• knowledge and approval
• undue influence
• duress
• conflict of interest
• privileged will