The formalities of a Will

The formalities of a Will

A Will is a legal document which allows you to decide on how to leave your estate on death. You can also set out your funeral wishes and who you wish to be guardian for your children.

There are certain formalities which must be met when preparing and executing (signing) a Will. If you have not made a Will, your Will fails to dispose of all your property on your death, or your Will is invalid, then your estate will be distributed in accordance with the intestacy rules. The intestacy rules are governed by the law and so who benefits on your death is dependent on who survives you (https://www.gov.uk/inherits-someone-dies-without-will/y).

Who can make a Will?

To be able to make a valid Will, you must be over the age of 18 and have testamentary capacity. The test for testamentary capacity is a legal test which provides that you must:

  • Understand that you are making a Will which comes into effect on your death

This means that you must appreciate that until you die, your property remains yours.

  • Understand the extent of your estate

This is everything that makes up your estate such as property, bank accounts and investments. A broad understanding of your estate is usually sufficient to meet this requirement of the test.

  • Understand moral claims on your generosity

In England & Wales we have testamentary freedom and so can choose to benefit who we want, even if this may come as a surprise to friends or family who expected to inherit. However, under the Inheritance (Provision for Family and Dependents) Act 1975 certain categories of people are able to bring a claim against your estate if they feel that they have been unfairly provided for under the terms of your Will (or under intestacy). This requirement of the test does not mean you have to benefit those who others might expect you to, but you will need to understand who, morally speaking, might have a claim on your estate if you choose not to benefit them.

Formalities on execution (signing)

The requirements for ensuring that a Will is validly executed (signed) are contained in the Wills Act 1837. Any Will which does not comply with these formalities will be invalid.

  • The Will must be in writing
  • The Will must be signed by you (the testator) in the presence of two witnesses
  • The two witnesses must then also sign the Will in your presence

The recommended approach is that you and your two witnesses remain together and attentive throughout the Will signing process. Your witnesses will watch you sign and date the Will. They do not need to know the contents of your Will as the requirement is that they know they are witnessing your signature. Each witness, in turn, then signs the Will, watched by you and the other witness.

Generally, if you instruct a lawyer to prepare your Will, they will arrange for you to come in to the office to sign, where they and a colleague will act as the two witnesses. Alternatively, the lawyer will meet with you at your home to sign the Will. In addition, the lawyer will include a clause known as an 'attestation clause' at the end of the Will which confirms that you have signed the document in the presence of both witnesses who have also signed in the presence of you. This clause is included to show that the formalities have been complied with.

The formalities require that your witnesses are present during the signing of your Will. This involves them having an understanding of what is taking place and also a physical presence, so they must see what is happening. Previous cases have held that physical presence includes witnessing the Will through a window.

Your witnesses should be over the age of 18. They must be of sound mind. A witness (or their spouse/civil partner) cannot benefit under a Will which they have witnessed. This is to prevent fraud. If you have left a gift in your Will to a witness (or their spouse/civil partner) then this will be invalid, meaning the gift to them will fail, although the rest of your Will remains valid. For this reason it is recommended to choose independent witnesses, such as a friend, neighbour or lawyer.

The importance of legal advice

It is important to receive legal advice when making a Will for a number of reasons. At Clapham & Collinge our lawyers are experienced and knowledgeable in the process of making a Will. This means that we can tailor advice to you and your circumstances to ensure that you have peace of mind and legal assurance that your wishes will be carried out once you are gone.

We take the time to discuss your situation and take your instructions, before preparing a draft Will and explaining, in everyday language, what the Will means. We will only arrange for you to execute (sign) the Will if you're happy with it. We recommend that we meet with you to arrange for the Will to be executed to ensure that the formalities are met, however if you arrange for the Will to be executed without our involvement, we will send out the document, along with clear instructions on how it should be signed to ensure the formalities are met and the Will is valid.

At Clapham & Collinge, we recommend that you review your Will at least every 5 years, or after life changing events such as; marriage, divorce, having a child, a change in job or the death of a loved one. It is also important to remember that marriage/civil partnership revokes a Will.

In light of current circumstances regarding the Coronavirus outbreak, Clapham & Collinge is taking steps to ensure we can continue to provide excellent service to our clients whilst protecting clients and staff members alike. Please see our guidance which will be updated regularly in line with Government and Public Health England updates.

We pride ourselves on providing Wills that give you complete peace of mind and legal assurance that your wishes will be carried out once you are gone so you know your family will be taken care of. For more information or to discuss your individual requirements in further detail, contact us on 01603 693500 or email us using 'Make an enquiry' online form on our website. Appointments are available at our Norwich, North Walsham, and Sheringham offices.

*This article is provided for general information purposes only and does not constitute legal advice or other professional advice.