Wills: formalities, revocation and common exam pitfalls

Will validity is a reliable source of single-best-answer questions because the formal requirements are precise and the scenarios invite small slips.

Execution: section 9 of the Wills Act 1837

Section 9, as substituted by section 17 of the Administration of Justice Act 1982, requires that a will is valid only if:

1. it is in writing;
2. it is signed by the testator, or by someone else in the testator's presence and by their direction;
3. it appears that the testator intended by the signature to give effect to the will;
4. the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
5. each witness either signs the will, or acknowledges their signature, in the presence of the testator (though not necessarily in the presence of other witnesses).

Common slips in scenarios: only one witness is present when the testator signs or acknowledges, a witness leaves before the testator signs, or the testator signs after the witnesses.

Witnesses who are beneficiaries

Under section 15, a gift to a witness, or to their spouse or civil partner, is void, although the will remains valid and the witness remains competent. Always check who witnessed the will and whether any beneficiary or their spouse did.

Capacity and knowledge

The test for testamentary capacity comes from Banks v Goodfellow (1870) LR 5 QB 549: the testator must understand the nature of the act and its effects, the extent of the property and the claims of those who might expect to benefit, and no disorder of the mind should distort their feelings or judgement. Separately, the testator must know and approve the contents of the will: Wintle v Nye [1959] 1 WLR 284 shows the courts' scrutiny where a will benefits the person who drew it up.

Revocation

Under section 20, a will can be revoked by:

• a later will or codicil,
• a written declaration of intention to revoke, executed like a will, or
• burning, tearing or otherwise destroying it, with the intention of revoking, by the testator or by another person in their presence and by their direction.

Marriage or civil partnership revokes an existing will unless it was made in contemplation of that marriage or civil partnership (sections 18 and 18B). Divorce or dissolution does not revoke the will but treats the former spouse or civil partner as having died, for appointments and gifts (section 18A).

Alterations and rectification

An alteration made after execution is only effective if executed in the same way as a will, usually by the testator and witnesses signing near it (section 21). Rectification may be available under section 20 of the Administration of Justice Act 1982 where a will fails to carry out the testator's intentions because of a clerical error or a failure to understand instructions.

Exam approach

For validity questions, check formalities first, then capacity and knowledge, then revocation. If the will fails at the first step, the rest of the analysis may be about the previous will or intestacy.

General educational information only. It is not legal advice, it does not predict any exam result, and UK SQE Course is not affiliated with or endorsed by the Solicitors Regulation Authority. Check the SRA website for current exam information.