What are the requirements for a will to be valid?

In England and Wales, the legal requirements for a valid will are primarily set out in the Wills Act 1837 and amended by subsequent legislation. Here are the key requirements:

1. Age and Capacity:

   – The testator (person making the will) must be at least 18 years old.

   – They must have the mental capacity to understand the nature of making a will, the extent of the property being disposed of and the claims of those who might expect to benefit from the will.

2. Intention:

   – The testator must have the intention to make a will and understand its effects.

3. In Writing:

   – The will must be in writing. It can be handwritten, typed or printed.

4. Signature of the Testator:

   – The will must be signed by the testator or annotated with their mark, or by someone else in their presence and by their direction.

5. Witnesses:

   – The signature must be made or acknowledged by the testator in the presence of at least two witnesses at the same time.

   – Each witness must either sign the will or acknowledge their signature in the presence of the testator (but not necessarily in the presence of the other witness).

6. Legislation:

   – The primary legislation is the Wills Act 1837. The Mental Capacity Act 2005 also applies, particularly concerning the mental capacity requirement.

7. Beneficiaries and Witnesses:

   – Beneficiaries of the will should not act as witnesses, or else they may lose their right to inherit under the will.

A recent and rather tragic case came before the chancery courts on this very subject. In The British Diabetic Association v Chenery [2024] EWHC 3466 (Ch).

Malcolm Chenery tragically ended his own life on May 4, 2021. Following his passing, a legal process was initiated to address the distribution of his estate. Elizabeth Chenery, one of Malcolm’s sisters, claimed to be eligible to inherit a portion of his estate under intestacy laws as it was understood that the deceased had not made a will. She submitted both an acknowledgment of service and testamentary evidence, showing that many family members, including her sisters and two nieces, believe that Malcolm intended to leave a bequest to the Diabetic Society or Diabetes UK.

In August 2021, police provided documents believed to be Malcolm’s final will. These consist of two separate pages of cardboard approximately 15 by 20 centimetres, with the second page signed by Malcolm on May 3, 2021. The documents also contained elements resembling a suicide note.

The Legal Issues:

1. Determining if the presented documents qualified as a valid will under the Wills Act 1837.

2. Assessing the impact of the disconnected pages on the will’s validity.

3. Identifying the rightful beneficiary and the party eligible for letters of administration.

The Legal Principles:

A valid will must include revocable instructions for property distribution upon death.

The testator must have intended to create a will (known in Latin as animus testandi) at the time of signing.

The will must adhere to the execution requirements outlined in the Wills Act 1837.

It is not necessary for each page of a will to be separately signed if all pages are present during execution.

The main issue was that the will comprised two disconnected pages. Legal precedents suggest that if a will is on multiple sheets and only the last is signed, it is presumed that the entire will was present and under the testator’s control during signing. No evidence contradicted this presumption in this case.

Though the first page was not shown to witnesses, it is reasonable to believe both pages were intended to be executed together. Family testimony supports that Malcolm intended to benefit a diabetes-related charity.

The court ruled that following Malcolm’s expressed wishes in the documents, supported by family testimony that the will was valid and that The British Diabetic Association was recognised as the intended beneficiary and should receive letters of administration for Malcolm Roy Chenery’s estate.

Having a solicitor draft or review your will can ensure it meets all legal requirements and accurately reflects your wishes. Additionally, we can advise on other legal instruments related to estate planning, such as trusts or powers of attorney. If you need further assistance or details on specific aspects of wills, feel free to ask.

This blog was prepared by Alexander JLO’s senior partner, Peter Johnson on the 11th March 2025 and is correct at the time of publication. With decades of experience in almost all areas of law Peter is happy to assist with any legal issue that you have. His profile on the independent Review Solicitor website can be found here.