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Introduction to Wills

Wills Factsheet No.1

 

Introduction

Making a Will is one of the most important things that you can do in your life, and yet, despite this almost two-thirds of the population do not have one.

So what is a Will, and why is it so important?

The aim of this introduction is to provide you with some basic information as to what a Will is and what it can and cannot do. There are a number of other factsheets (details of which you will find on our Factsheet page) which deal with other more specific topics relating to Wills, so for more information please see these.

In this factsheet, we are going to look at four key areas:

What is a Will?

Let us begin by looking at what a Will is.

A Will is a legal document whose main function is to set out what a person wants to happen to their property, assets, money and other things which you own (referred to as their "estate") on their death.

However, a Will can also be usd for a number of other things. These include:

It is important that a Will be in writing. A verbal statement will not usually be regarded as a valid way of passing your property. However, whilst we would not recommend such an informal approach, provided that a Will is correctly signed and witnessed, then strictly speaking any written document, even a letter, could be regarded as a valid Will.

You should note, however,that for a Will to be valid it must be made in a certain way and must be signed by the person making the Will (called the "testator") in the presence of two other adults ("witnesses") both of whom must be present at the same time and who witness the Will being signed.

You can find out more about the specific requirements for witnessing a Will in our Signing and Witnessing Wills factsheet.

Do I need a solicitor?

Although strictly speaking you do not need to use a solicitor or other professional to write a Will for you, because it is complex document and because you will not be around to explain what you meant in your Will, it is recommended that you do so. If you make it without proper assistance then you may find that, either:

Who can make a Will?

Most people can make a Will, although there are some limitations of which you need to be aware and some additional steps which may need to be considered in certain circumstances.

Anyone can make a Will provided:

Mental capacity

Mental or "testamentary" capacity is an important factor when making a Will and has regularly led to Wills being contested and over-turned by the courts.

By capacity is meant the persons ability to make and understand the making of the Will and if there is any doubt as to a person's mental capacity then additional steps need to be taken to ensure that the Will is not overturned after their death.

The distinction between those who have testamentary capacity and those who do not is neither precise nor well defined and there are many who may lack the testamentary capacity to make a complex Will but are more than capable of making a simple Will. Others may be seriously impaired mentally in some respects but still be capable of making business or financial decisions about their estate. Some incapacities may affect a person but have absolutely no bearing whatsoever on their ability to make a Will.

In working out if a person has capacity, the courts still rely on a case from 1870 (called Banks v Goodfellow) which set out three principal tests for mental capacity of a person making a Will:

Just over a hundred years later, in 1977, Justice Templeman proposed in the case of Re Simpson that the Will of an elderly testator, or one suffering from a serious illness, should always be witnessed or approved by a medical practitioner who could confirm that the capacity and understanding of the testator was adequate , and who could then keep a record of the fact for future reference.

Undue influence and fraud

A further factor to bear in mind is that the testator must intend making a Will, and must not be doing so as a result of undue influence or fraud, and must not be mistaken as to the contents of their Will.

It is not uncommon for testators to be forced into making or amending a Will, for example where a prospective beneficiary exerts undue influence to ensure that the terms of an earlier Will are revoked in favour of the terms in the new Will.

Normally, the courts require that the undue influence place considerable pressure on the testator. This means that although no physical force needs to be exerted for undue influence to occur, there does have to be some element of coercion. Simply persuading someone to make or change their Will, or drawing to the testator's attention alleged obligations, would probably not be enough.

Undue influence is not easy to prove - especially as the testator will by this time have died and cannot therefore give evidence. The courts tend to work on the presumption that there was no undue influence unless the contrary can be proved.

Similarly, fraud would be an equally difficult matter to prove. For a Will to be set aside on the basis of a fraud, it would have to be shown that the testator had made a Will as a result of a deception - for example persuading the testator to change their Will on the basis of a lie.

Knowledge of the Contents

Another important point is that for a Will to be valid it is essential that the testator knows what is in their Will.

Usually there will be a presumption that a person is aware of the contents of their own Will. However, if the testator is blind or illiterate or unable to sign the Will themselves then that presumption will not apply. In these circumstances an additional clause may need to be added to the Will confirming either that the Will has been read to the person if they cannot read it themselves and they have understood and approve of its contents, or that it has been read, understood and approved of by the testator but signed by someone else on their behalf.