What is a Will?
A Will in England and Wales is a legal document where you can decide what should happen to all your assets, who inherits, and who deals with your estate after you pass away.
It deals with the entirety of your qualifying estate under English succession law, including your properties, bank accounts, investments, personal belongings, business interests, pensions, insurance policies, and any other assets. Certain assets, such as jointly owned property held as joint tenants or assigned life insurance policies, will pass outside of the Will under separate legal rules.
Unlike a letter of wishes, a Will is binding and enforceable by law, providing a clear legal basis for your estate to be divided in accordance with your instructions.
Making a valid Will is an important step to protect your family, preserve your wealth, and ensure your wishes are respected.
Why is it important to make a Will?
If you pass without a valid Will, your estate will be divided according to the intestacy rules set out in the Administration of Estates Act 1925. These rigid statutory rules may not reflect your personal wishes.
For example:
- Unmarried partners or cohabitees are not entitled to inherit anything under intestacy rules. This may create serious issues for the surviving partner if they financially relied upon the deceased partner.
- Only spouses or civil partners and relatives can inherit, even if the relationship has broken down or you have been separated from them for many years.
- Unrelated individuals like friends and stepchildren will not receive anything unless expressly provided for.
- If you have minor children, you may wish to appoint a guardian for them in the case that both parents pass away while they are still minors; otherwise, the state may need to become involved to determine arrangements.
- The administration procedure is often more complex and time-consuming if there is no Will, which may create unnecessary stress for your loved ones during an already difficult time.
Wills can also have the following benefits:
- Set out your funeral or burial wishes, should you have specific instructions.
- Leave gifts to charities, pets, or friends.
- Structure your estate to reduce potential inheritance tax liability for estate planning purposes.
- Appoint trusted individuals as executors to manage your estate.
Legal requirements for making a valid Will in England and Wales
For a Will to be valid and enforceable under English law, it must satisfy three key requirements: (i) capacity, (ii) knowledge and approval, and (iii) formalities. More information is set out below on each requirement:
Capacity
The person making the Will (the “Testator”) must be:
- At least 18 years of age; and
- Of sound mind.
According to the test set out in Banks v Goodfellow [1870] LR 5 QB 549, this means that the Testator must:
- Understand the act of making a Will and the effects of a Will;
- Understand and at least partially remember the extent of what they own;
- Be aware of the persons who may expect to inherit and consider their claims; and
- Not suffer from a mental disorder or impairment which prevents rational decision-making (such as Alzheimer’s or dementia).
Where the Testator is elderly or seriously ill, and their capacity is likely to be challenged, the best practice (often called the “Golden Rule”) is to consult a medical practitioner to confirm capacity.
Under normal circumstances, solicitors can assess the Testator’s capacity through careful consultation and questioning, or advice when medical consultation is necessary.
Formalities
A valid Will in England and Wales must:
- Be in writing
- Be signed by the Testator (or by someone else at their direction and in their presence)
- Be signed in the presence of two independent witnesses
- Be signed by those two witnesses in the presence of the Testator
Witnesses must not be beneficiaries under the Will (or the spouse or civil partner of a beneficiary), otherwise that gift may fail.
Ideally, witnesses should be adults with full capacity. They may also need to give evidence if the Will is ever challenged, so they should be trustworthy and reliable individuals.
Failure to comply strictly with these formalities can render a Will invalid.
Knowledge and Approval
Additionally, the Testator must also genuinely understand and approve of the contents of their Will.
In most cases, knowledge and approval are presumed where capacity and formalities requirements have been met, especially where a solicitor prepared the Will.
However, where there are suspicious circumstances, such as unexpected gifts or the involvement of a beneficiary in preparing the Will, additional proof may be necessary.
This also applies where the Testator did not personally read or sign the will, including where the Testator has vision or hearing disabilities, is illiterate, or had another person sign on their behalf.
Professional drafting and supervision significantly reduce the risk of disputes.
Considerations when making a Will
Before making a Will, it may be helpful to list out all your assets so you can consider how you want them to be divided. This will also prevent forgetting about any assets, or any unintended omissions or disposals.
Once you have a list of your assets, you can then consider who should inherit each asset in turn.
When considering who to leave assets to, it is also important to consider who should substitute them in case the first Beneficiary predeceases you or is unable to inherit the asset. For example, the Testator’s children will usually be substituted by their children, meaning the Testator’s grandchildren.
It may also be prudent to consider estate planning to lower inheritance tax liability.
It is also important to note that a Will made in England or Wales under English law may not be recognised in other countries. Different jurisdictions have different rules around inheritance and wills and may have additional requirements in the probate process.
Therefore, if you have overseas assets, you may wish to seek separate legal advice in that jurisdiction and consider drafting a will under that country’s law.
A professionally prepared Will can help ensure that nothing is overlooked and that your estate is structured efficiently and securely. However, ensuring that your wishes are ultimately carried out also depends on how the Will is maintained, reviewed, and protected over time. In Part 2, we explore the practical steps required after execution, including storage, updates following life events, and measures to minimise future disputes.
How we can help
Creating a properly drafted Will can help to safeguard your legacy, protect your loved ones, and prevent unnecessary delays, stress, or disputes.
Our firm provides comprehensive Will drafting services and we can assist you in ensuring all the requirements of Will making are met, including:
- Consultation on your wishes and estate
- Advice on inheritance tax and estate planning
- Professional will drafting to give effect to your intended estate division
- Capacity assessment (where appropriate)
- Provision of two professional colleagues to witness your Will
- Assistance with will execution to ensure formalities are met
- Secure storage of your will at no extra charge
- Detailed attendance note taking to evidence capacity, knowledge, and approval
These steps will help to reduce the risk of your Will being challenged after your passing and ensure that your assets are divided according to your intentions.
Our Will drafting services are fully regulated and we are accredited under the Wills and Inheritance Quality Scheme, reflecting our commitment to the highest professional standards. View our Wills and Probate page here.
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