Validity of wills

WAE.01 — Validity of Wills (FLK2)

A will is valid only if four requirements are all met: capacity, intention, formalities, and the absence of vitiating factors.

1. Capacity (the Banks v Goodfellow test)

At the time the will is made, the testator must:

• understand the nature of the act and its effects;
• understand the extent of the property being disposed of;
• comprehend and appreciate the claims to which they ought to give effect; and
• have no disorder of the mind that perverts their sense of right or prevents the exercise of natural faculties.

Banks v Goodfellow (1870) remains the test, not the Mental Capacity Act 2005 (Clitheroe v Bond). The golden rule (Kenward v Adams): for an aged or seriously ill testator, have a doctor witness/approve — best practice, not a validity requirement.

2. Intention

The testator needs general intention (to make a will) and specific intention (to make this will). Knowledge and approval are presumed if capacity + due execution are shown, but the presumption does not apply where there are suspicious circumstances (e.g. the person preparing the will takes a benefit) — the propounder must then prove knowledge and approval.

3. Formalities — Wills Act 1837, s.9

The will must be:

• in writing, and signed by the testator (or by someone in their presence, at their direction);
• signed (or earlier signature acknowledged) in the presence of two or more witnesses present at the same time; and
• each witness then signs (or acknowledges their signature) in the testator's presence.

Trap: a witness (or their spouse/civil partner) who is also a beneficiary loses the gift — s.15 voids the gift, not the will. Use two independent witnesses.

4. No vitiating factors

Undue influence (coercion overpowering the will — must be proved, never presumed in wills, unlike lifetime gifts), fraud, or forgery invalidate the will.

Key distinctions to get right

• Capacity is tested when instructions are given/will executed — Parker v Felgate allows a lucid-instruction-then-execution sequence.
• Privileged wills (s.11 / Wills (Soldiers and Sailors) Act 1918): actual military service or mariner at sea — informal, even oral, valid; minors can make them.
• Marriage/civil partnership revokes a will (s.18) unless made in contemplation of it; divorce treats the ex-spouse as predeceased (s.18A).
• No will or partial failure → intestacy rules apply.