CAN YOU MAKE A WILL?

To be entitled to make a will (as opposed to having a court make a will for you and deciding what that will shall be) you must have valid testamentary capacity. This means that in addition to being over the age of 18 (unless you are a seaman at sea or you are in the armed forces and on active military service), you must be able to

• understand roughly what making a will means, i.e. the nature of the transaction you are entering into;
• have a rough idea of what you have to leave;
• be aware of those you are benefiting in the will and those you have a moral obligation to benefit (although you are not under a legal obligation to leave them anything); and
• understand in broad terms the effect of the will.

A distinction is drawn between being capable of understanding and actually understanding and in the event of a dispute as to your testamentary capacity proof that you actually understood, as opposed to the fact that you were capable of understanding, is not required.

You are assumed to have testamentary capacity unless it is proved that you lack capacity and unless it is proved that you lack capacity the provisions of your will may be as unwise, imprudent, capricious, spiteful and eccentric as you wish.

You may have testamentary capacity and be able to make a valid will even though you are of unsound mind and suffering from delusions in some respects, as long as that insanity does not affect the above points. For example, you may have good testamentary capacity even though you are convinced that the world is a cube.

Your will will not become invalid if you become totally insane or otherwise lose your testamentary capacity after making it, as long as you had testamentary capacity at the time you made it. Even if you are normally mentally incapable, you are legally able to make a valid will in any lucid period.

If you ask someone else, for example a solicitor, to prepare a will for you, the will will be valid if you had testamentary capacity at the time you gave the instructions for the preparation of the will, even if it is doubtful whether you had testamentary capacity at the time you signed the will, provided that at the time you signed the will you understood that it put into effect the instructions which you had given for the will.

If you are over the age of 18 and do not have testamentary capacity, The Court of Protection can be requested to authorise the making of a will for you under powers given to it by The Mental Capacity Act 2005. Such a will is known as a statutory will and will be made to benefit those whom you personally might be expected to benefit by your will if you had competent legal advice and were not mentally disordered.

Although an application for the making of a statutory will is expensive, it might be justified by the reasons for making a will which are set out in Chapter 1, especially if there have been major changes in tax laws or in your financial or other circumstances since you lost your capacity or made your previous will.

If your will is rational on the face of it at the relevant time there will be a rebuttable presumption that you had full testamentary capacity when you made it. If your capacity is likely to be challenged it might be sensible to ask your doctor to examine you and to witness the will.

The fact that you are unable for physical or educational reasons to read or write or that you can only sign your name by making your mark does not prevent you from making your will; these difficulties can be dealt with in the wording of the will as we shall see later.

If you have the necessary mental capacity and are a member of the armed forces engaged in actual military service or are a seaman at sea, then notwithstanding the fact that you may be under the age of 18, you can make an informal will which will not be revoked by merely leaving the service or, in the case of a seaman, returning to land.

COMPLYING WITH THE FORMALITIES

Members of the armed forces engaged in actual military service and seamen at sea can make informal wills without observing any formalities whatsoever: their wills can be made irrespective of their age, do not have to be witnessed and need not be made in writing. Unless you fall within those categories there are some formalities which must be observed if your will is to be valid and legally enforceable.

The remainder of this chapter applies to any will that you make in England or Wales. The formalities for making wills while you are abroad or for making what are known as ‘international wills’ are dealt with in Chapter 8.

The formalities, which are legally required and are essential in respect of wills which you make in England or Wales, are as follows.

YOUR WILL MUST BE MADE IN WRITING

Your will can be in any form of writing, handwritten, typed or printed, and in any language, but it must be in writing and any other expression of your wishes will not be effective. Oral expressions of your wishes and wills recorded on sound-tapes or videotapes are therefore not valid wills.

Your will should be written legibly because what cannot be read cannot be enforced. You do not necessarily have to write out the will yourself but if a beneficiary writes out the will by hand for you, suspicions might arise as to whether or not you knew of and approved of the contents of the will when you signed it and it could be challenged.

Your will can be written on any material on paper, parchment, linen or carved in stone if you wish. Certain stationers sell ‘will forms’ upon which the basic parts of a will are pre-printed and on which you only have to fill in the blanks, but for some reason or another people always seem to have difficulty in rilling them in correctly. In over 35 years practising as a solicitor I cannot recollect seeing more than a dozen will forms which had been correctly completed. As in all other matters relating to wills, when considering the material upon which your will is to be written, it is better to keep it simple and use a blank sheet of good quality paper because with good luck and a healthy lifestyle it will be many years before your will will be required to be proved! If you use ink, use permanent ink. Although to do so would not make your will invalid, for reasons of security do not use pencil or a writing media which can be easily erased. Not everyone is honest in financial matters!

YOUR WILL MUST BE SIGNED BY YOU OR BY SOMEONE IN YOUR PRESENCE AND AT YOUR REQUEST

The signature need not be your full name or indeed your name at all as long as a court will be satisfied that the mark which is made was intended as your signature and that it was intended to authenticate the document as your will. I always told clients to sign their will in the same way as they would sign their cheques on the basis that if the mark intended as a signature can extract money from their bank account it can do anything! An inked thumbprint has been held by a court to be a sufficient signature, as has the testator’s initials impressed by his seal, but the courts have not yet accepted electronic signatures and it is best to keep it simple and avoid courts rather than tempt fate by using such esoteric forms of authentication.

In whatever way your will is signed, it must either be done by you personally or by someone for you, at your direction and in your presence. To avoid problems, you should always sign your will personally or at least make a mark as your signature if you possibly can. If you are physically unable to sign or make your mark, e.g. because of paralysis or because you are blind, you can ask someone to sign the will for you as your will but they must do so in your presence and in the presence of the required witnesses.

YOUR SIGNATURE ON THE WILL MUST BE MADE OR ACKNOWLEDGED BY YOU IN THE PRESENCE OF TWO OR MORE WITNESSES WHO MUST BE PRESENT AT THE SAME TIME

If all the witnesses to your will are not with you when the will is signed, you must confirm to them that the signature is yours and all the witnesses must be there when you do so. It is not sufficient for you to confirm it to each witness on separate occasions or for you to sign in the presence of one or more witnesses when the others are not there and subsequently to confirm the signature to the absent witness or witnesses.

Although the Wills Act 1837 refers to two or more witnesses it is only necessary and usual to have two witnesses to your signature, but they must be of age and mentally capable.

EACH WITNESS MUST SIGN THE WILL AND EITHER SIGN OR ACKNOWLEDGE HIS SIGNATURE IN YOUR PRESENCE

You must be present when the witness signs or acknowledges his signature, but there is no necessity for each witness to be present when the other witness signs.

IT MUST BE APPARENT THAT YOU INTEND TO GIVE EFFECT TO THE WILL BY SIGNING IT

In practice your signature and those of the witnesses should appear at the end of the will to show that they are intended to give effect to all that goes before the signatures as your will. If words appear in the will after the signatures there can be problems in that the Probate Registry will insist on the witnesses swearing an affidavit or making an affirmation to confirm that the words were in your will when it was signed and not added later by you or by anyone else and the witnesses might not then be alive, traceable or able to recollect. If the words were added later, of course, they would be ineffective and invalid and would not be admitted to probate.

If there are more pages than one it is as well for yourself and the witnesses to also sign at the bottom of each page so that nothing can be added later to the page and for the pages to be numbered so that no further pages can be inserted.

It is usual to indicate in the wording of the will that the document is signed as your last will. See the specimen wills in the appendix.

A FEW GENERAL WORDS ON THE SUBJECT OF SIGNING THE WILL AND WITNESSES

The witnesses are witnessing your signature. It follows therefore that you must sign first or there will be nothing for them to witness. The witnesses must be in a position to see you sign, not blind and their view must not be obscured. The witnesses need not know the contents of the will or even that it is a will, because it is your signature that they are witnessing and not the document, but it is necessary that they should not merely see the document but also intend to verify, ie attest, the signature that is being witnessed.

When are you and the witness in each other’s presence? When each can see what the other is doing, even if you are not in the same room.

All the above requirements as to the witnessing of wills might seem complicated but if you ensure that

• yourself and two adult witnesses are all present in the same room before any signing begins
• the witnesses are not blind
• the witnesses are not beneficiaries or the executors of the will or the spouse or civil partner of any beneficiary or executor (if they are the will will be valid but the beneficiary will lose the bequest and the executor possibly his right to expenses unless specifically authorised to charge them or the will is an informal military one or a seaman’s will made at sea)
• the witnesses are likely to be traceable if required when you die
• you sign first followed by each witness
• each witness signs with his usual signature and follows it by his printed name and his address and occupation or status (married woman, widow, etc.) if a woman and
• no one leaves the room before the signing is complete

there should be no problem.

CONVENTIONS

There are other traditional practices which, while they are not legal requirements and will not invalidate your will if they are not followed, are conventions used in the layout of wills and which will give your will a classy, professional appearance. These are as follows:

• 1.The will should be laid out in paragraphs numbered in sequence after a first paragraph which confirms the nature of the document (will or codicil) and states your name, address and occupation or, if you are a woman without an occupation, your status (married woman, widow etc.). The first words of each paragraph should be in block capitals and underlined.
• 2.The order of the paragraphs should be
  • a)a clause beginning I REVOKE to revoke all previous testamentary dispositions if that is your intention;
  • b)a clause beginning I APPOINT which deals with the appointment of executors and trustees;
  • c)a clause beginning I GIVE which sets out any legacies of money which you might wish to make;
  • d)a clause beginning I BEQUEATH which sets out any gifts of specific articles which you wish to make;
  • e)a clause beginning I BEQUEATH which sets out any gifts of leasehold property;
  • f)a clause beginning I DEVISE which sets out any gifts of freehold land or buildings;
  • g)a clause beginning I GIVE DEVISE BEQUEATH AND APPOINT which deals with any remaining property you may have to dispose of;
  • h)separate clauses or sub-clauses giving your executors additional powers or excluding powers which the law gives them by default;
  • i)a clause beginning I EXPRESS the wish, which sets out your wishes in relation to your funeral and the disposal of your body after your death;
  • j)a clause beginning IN WITNESS explaining that you have signed your will and stating the date on which it is signed unless the date has been stated in the introductory paragraph; and finally
  • k)a clause called an attestation clause that explains the circumstances in which the will was signed and witnessed beginning SIGNED. If you are unable to read, this clause should explain that the will had been read over to you before you signed it and the two witnesses then signed it in your presence. In these circumstances it should also state that you understood and approved the will. If you are unable to sign the will, the clause should explain that it is signed by a named person for you, at your request and in the joint presence of yourself and two witnesses, who then signed the will in your presence and the presence of the person who signed for you. Suitable forms of attestation clause can be found in the appendix to this book.
• 3.All names should be set out in full, in capitals and underlined.
• 4.Sums of money should be stated in words in underlined block capitals followed by the sum in brackets in figures.

Reference to the specimen wills in the appendix to this book will make the above points clearer.

TAKING PRECAUTIONS AGAINST FRAUD

As a precaution against the possibility of subsequent tampering with the will and fraud:

• 1.The date of the will should be expressed in words rather than figures (words are more difficult to alter than figures) and any sums of money should be expressed in words followed by the sum in brackets expressed in figures.
• 2.Each page of the will should be numbered and signed by you and by the witnesses as close to the last line on the page as possible to prevent anything being inserted.
• 3.Try to avoid making any alterations, interlineations or obliterations, but if they are unavoidable, you and the witnesses should each write his or her respective initials as close as possible to them to authenticate them.
• 4.The gaps at the end of each line and paragraph should be ruled through.
• 5.The same pen should be used by you and by the witnesses when signing to indicate that all signed at the same time.
• 6.If you are blind or otherwise unable to read, have someone other than the person who prepared the will read it over to you before it is signed.

Finally never, never attach, pin or fasten anything to the will, even with a paperclip.