A will is a crucial legal document that ensures your wishes are carried out after your death. However, for a will to be legally valid, it must be properly signed and witnessed.

Unfortunately, media portrayals of the legal process can be misleading. A recent example from EastEnders incorrectly suggested that a solicitor could simply ‘seal’ a will to make it valid. In reality, there are strict legal requirements that must be followed. Misunderstandings about these rules can lead to costly disputes, mistakes, and unnecessary emotional stress for your loved ones.

What makes a will legally valid?

In England and Wales, a will must comply with the formalities set out in Section 9 of the Wills Act 1837. These include:

1. The will must be in writing and signed by the person making it (the ‘testator’), or by someone else in their presence and at their direction.
2. The testator must intend their signature to confirm that the document is their will.
3. The will must be signed in the presence of two witnesses who must then also sign the will or confirm their signatures in the testator’s presence. Witnesses do not need to sign in each other’s presence, but they must each sign in the presence of the testator.

Interestingly, a will does not need to be dated, but failing to include a date can cause complications after death.

These legal requirements exist to prevent fraud, undue influence, and hasty decisions that could lead to disputes.

Additional legal requirements

For a will to be valid, the testator must also:

• Be at least 18 years old (except in rare cases, such as for Armed Forces personnel).
• Make the will voluntarily, without pressure or coercion from others.
• Understand and approve the contents of the will.
• Be of sound mind (known as ‘testamentary capacity’), meaning they understand what a will is, what it does and who might reasonably expect to inherit from them.
• Have a clear understanding of their property and assets.

Signing and witnessing a will

A will can be handwritten, typed, or a mixture of both. While there are no restrictions on the type of paper or ink used, using standard paper is advisable since the document may need to be sent to the Probate Registry after death.

Who can witness a will?

Witnesses play a crucial role in confirming that a will was signed correctly. They must be:

• Independent (i.e. they will not benefit from the will or be married to someone who will, as this would prevent them from inheriting).
• Aged 18 or over (ideally).
• Capable of understanding what they are witnessing.

The signing process is also important. The testator must sign first, followed by the witnesses.

As of 1 February 2024, wills can no longer be witnessed via video link. This temporary measure was introduced during the Covid-19 pandemic but is no longer permitted.

What happens if a will is invalid?

If a will does not meet the legal requirements, it may be deemed invalid. This can have serious consequences, such as:

• The testator’s assets (their estate) being distributed under intestacy laws. These laws can be complicated. They can mean that someone you don’t want to inherit your assets will do so, such as a spouse you are separated from.
• Family disputes and legal battles.
• Increased emotional and financial strain on loved ones.

Practical tips for ensuring a valid will

• Follow the legal procedure: Ensure your will is signed in the presence of two independent witnesses, who must also sign it.
• Seek professional advice: A STEP-qualified advisor can help ensure your will meets all legal requirements.
• Choose witnesses carefully: Independent, reliable witnesses reduce the risk of future disputes.
• Keep good records: Documenting the will-signing process can provide proof that everything was done correctly, particularly if guided by a professional.

Understanding the legal process is essential to ensuring your will is valid and your wishes are respected. By taking the right steps, you can provide clarity and peace of mind for yourself and your loved ones.

Nina Sperring TEP, Partner, Price Slater Gawne