Before you start to consider what you might want to put into your Will and before you begin the process of drafting it, or instructing YourWill to draft a Will for you, it is worthwhile taking a few minutes just to learn a little more about what what a Will is and, in general terms, what it can and cannot do.
This Introduction to Wills Factsheet looks at what a Will is, and at issues relating to :
You will find information about other aspects of Wills and probate in our other factsheets. These include topics such as planning your Will, appointing executors and how to sign your Will.
You will find a list of topics to the right of this page and details of all of Factsheets in the Factsheets section of the web site and at the side of each relevant page.
A Will is a legal document the main function of which is to set out what you want to happen to your property, assets, money and other things which you own (called collectively your “estate”) on your death. A Will can also, however, be used to set out your wishes on a number of other matters, including:
Because a Will is described as a document, it follows therefore that it must be in writing. A verbal statement will not, other than in exceptional circumstances, be regarded as a valid way of passing your property. Provided that it is correctly signed and witnessed, strictly speaking any written document, even a letter, could constitute a valid Will. However, as we mention below, we would not recommend such an informal approach.
In addition, 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 about the specific requirements for witnessing a Will in the YourWill web site section dealing with Signing and Witnessing Wills.
Although you do not need to use a solicitor or other professional to write a Will for you, it is recommended that you do so. It is an important, technical document and if you make it without proper assistance then you may find that, either:
Almost anyone can make a Will, but 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:
Issues as to mental capacity can be a problem and have regularly lead to Wills being contested and over-turned by the courts. It is therefore vitally important that if there is any doubt as to a person’s mental capacity that additional steps are taken to ensure that the Will is not overturned after their death.
The distinction between those with testamentary capacity and those without it 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 determining whether a person has capacity, the courts still rely on a case from 1870 – Banks v Goodfellow which contained three main tests for mental capacity:
Just over a hundred years later, in 1977, Justice Templeman proposed in the case of Re Simpson that the Will of an aged testator, or a testator who has suffered a serious illness, should always be witnessed or approved by a medical practitioner who is happy as to the capacity and understanding of the testator, and who then keeps a record of the fact in case it needs to be called upon at a alter date.
Finally, bear in mind that a person making a will must have capacity at the time they decide what to do with their estate and at the time they sign their will. If a person does not have capacity to make a will, and would otherwise die intestate, a statutory will can be made under the auspices of the Court of Protection.
Whilst it might seem an obvious point to make, it should also be borne in mind 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 coerced into making or amending a Will in circumstances where they either simply do not want to make a Will or, more likely, 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 would require that the undue influence place considerable pressure on the testator. Whilst no physical force needs to be exerted for there to be undue influence, there does have to be some element of coercion. Thus simply persuading someone to make or change their Will, or drawing to the testator’s attention alleged obligations would probably not be enough. Clearly this is not something that is easy to prove – especially as the testator will by this time have died and cannot therefore give evidence – and the courts will always work on the presumption that there was no undue influence unless it can be proved to the contrary.
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.
Another apparently obvious point, but nevertheless one which is very important, is that it is essential for a Will to be valid 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.
Click on any of the links below to go to a Factsheet dealing with that particular topic.
Please note that a pdf version of each of these Factsheets can be downloaded from our main Factsheets page.