Validity of wills

WAE.01 - Validity of Wills (FLK2)

For an ordinary will in England and Wales, check capacity, intention, formalities and vitiating factors separately. The testator must normally be 18 or over (Wills Act 1837, s.7); see privileged wills below.

1. Capacity (the Banks v Goodfellow test)

The testator must be capable of understanding:

• what making a will does and its effects;
• the broad extent of the property being disposed of; and
• the claims of those they ought to consider, including people they decide to exclude.

A mental disorder must not distort the testator's affections, judgment or decision-making faculties; a delusion must not cause a disposition they would not otherwise make. Illness, imperfect memory or an unfair choice does not by itself establish incapacity. This is an ability-to-understand test, not a demand for a complete asset inventory or perfect recall.

Banks remains the probate test, rather than the Mental Capacity Act 2005 test; the MCA has a separate role in statutory wills made on a person's behalf. The golden rule is to obtain a medical assessment of capacity and understanding, with a contemporaneous record, for an aged or seriously ill testator: prudent practice, not a condition of validity. See Clitheroe v Bond [2021] EWHC 1102 (Ch), [19], [30], [79], and Leonard v Leonard [2024] EWHC 321 (Ch), [150]-[152].

2. Intention

The testator must intend the document to operate as their will and know and approve its contents and effect. Capacity and due execution ordinarily support an inference of knowledge and approval. Suspicious circumstances, such as a beneficiary's involvement in preparing the will, require affirmative evidence dispelling the suspicion; they do not automatically invalidate the will. The person putting the will forward bears the burden, assessed on all the evidence. See Leonard, [166]-[170].

3. Formalities - Wills Act 1837, s.9

Under the domestic s.9 execution route:

• it must be in writing, signed by the testator or by another person in their presence and at their direction;
• it must appear that the testator intended the signature to give effect to the will;
• the testator must sign or acknowledge their signature before two or more witnesses present together; and
• each witness must attest and sign, or acknowledge their signature, in the testator's presence, not necessarily in the other witness's presence. No particular attestation wording is required.

For a will made now, presence is physical. Section 9(2)'s temporary video-presence rule applies only to wills made from 31 January 2020 to 31 January 2024, inclusive.

Gift validity is separate: s.15 ordinarily voids a beneficial gift made by the will to an attesting witness or their spouse, not the will or the attestation. Civil partners are included by Civil Partnership Act 2004, Schedule 4 paragraph 3. Section 15 excepts charges and directions for paying debts.

Under Wills Act 1968, s.1, an affected attestation is disregarded if the will is duly executed without it and without every other similarly affected attestation. One unaffected witness is insufficient; merely having three signatures is not the test. Use two unaffected attesting witnesses. This is the statutory disregard rule, not a claim that no other legal route can preserve a gift.

4. No vitiating factors

Testamentary undue influence means coercion overcoming the testator's free decision, not mere persuasion. The challenger must prove it on the balance of probabilities; there is no testamentary presumption of undue influence. It can be inferred from evidence without a direct witness to the coercion. See Rea v Rea [2024] EWCA Civ 169, [20]-[32]. Fraud can invalidate the affected will or gift (Leonard, [149]); a wholly forged will is not the testator's will. A defect affecting one disposition does not automatically invalidate every other disposition.

Key distinctions to get right

• Capacity timing: normally assessed at execution. Under Parker v Felgate, the testator must have had capacity when instructing the solicitor; the will must implement those instructions and still reflect their intentions; at execution they must be able to understand, and actually understand, that they are executing that instructed will. Earlier capacity alone is insufficient. See Hughes v Pritchard [2022] EWCA Civ 386, [68]-[69].
• Privileged wills: the limited service/sea exceptions under s.11 and the Wills (Soldiers and Sailors) Act 1918 relax ordinary formalities and age requirements; an oral will can qualify. They cover soldiers in actual military service, mariners/seamen at sea, and the 1918 Act's naval/marine extension. They do not make every service member's informal statement a will: testamentary intention is still needed.
• Marriage/civil partnership: ordinarily revokes an earlier will (ss.18/18B). The contemplation exception requires the will to show an expected marriage/partnership with a particular person and an intention that the will or relevant disposition survive it. These sections also contain power-of-appointment and specified conversion exceptions.
• Divorce/dissolution: ss.18A/18C change specified gifts, executor/trustee appointments and powers of appointment as if the former spouse/partner died on the dissolution or annulment date, unless the will shows a contrary intention. They do not revoke the whole will. Qualifying recognised overseas dissolutions/annulments are included. For an England-and-Wales divorce, a conditional order is not the final order ending the marriage.
• Failed gift, residue, intestacy: a failed non-residuary gift does not automatically produce intestacy. Check any substitute/saving provision and whether an effective residuary gift catches the property; for example, a void cash legacy can fall into an effective charitable residue. Intestacy governs estate property left without an effective testamentary disposition, whether through omission or an unabsorbed failure. If no valid will disposes of the estate, intestacy applies to it. See Administration of Estates Act 1925, s.49, and HMRC IHTM12081/IHTM12111.

Practise at the real standard

Strong on this topic? SQE1 tests 137 of them, and 58% did not pass in July 2026. See where you stand across all of them.

Complete includes

• ✓An AI tutor on every question. The tutor already knows the correct answer
• ✓5 full timed mock papers, plus unlimited drilling — no daily cap
• ✓The whole 2,263-question bank, with worked answers and references, all 137 topics
• ✓Your weak-spot map: exactly where you’re losing marks

One payment, nothing recurring. The 25-question diagnostic is free with no card.