Construction of a Will

  • Introduction to Wills

    • A valid will allows clients to define the administration and distribution of their estate.

    • Clients can specify:

    • Executors of the will

    • Guardians for minor children

    • Proportions in which heirs inherit and ages of inheritance

  • Reasons for Creating a Will

    • Personal Choice: Personal preferences for distribution of assets.

    • Pragmatic Concerns:

      • Inheritance tax

      • Estate planning including care home fee considerations

    • Charitable Contributions: Ensures the client's wishes regarding charities are honored.

  • Legal Format of a Will

    • Must comply with Section 9 of the Wills Act 1837 and Administration of Justice Act 1982.

    • A will must be:

      • Written and signed by the testator (or by another person in their presence).

      • Attested by two or more witnesses present at the same time.

      • The testator intended for their signature to validate the will.

  • Requirements for Valid Signature

    • The will should preferably be:

      • Written in ink, typed, or printed to avoid ambiguity.

      • Feeding case reference: Hodgson & Barnes (1926) validated a will written on an eggshell.

    • Privileged Wills:

      • Oral wills allowed for soldiers/mariners in active service.

      • Example: Soldiers making oral declarations when facing death.

  • Testator’s Signature

    • Signature authenticates the will and reflects intent.

    • Must either be a normal signature or a mark valid as long as intent is clear (e.g. thumbprint for illiteracy/physical inability).

    • Case references:

      • Reed Parsons (2002): Allowed thumbprint.

      • Savory (1851): Initials accepted as valid signature.

      • Jenkins (1863): Stamped signature validated.

      • Cook (1960): Personal note as signature representation accepted.

  • Partial Signatures

    • Allowed if they reflect intent.

      • Notable case: Goods of Chalcraft (1948): Partial signature due to physical weakness upheld as valid.

    • Witnessing Requirements:

      • Two witnesses must attest the testator’s signature.

      • Witnesses should not be beneficiaries.

      • Evidence from witnesses is critical if doubts arise.

  • Signatures of Witnesses

    • Must be present during the testator’s signing or must have the opportunity to see.

    • Case references:

      • Casson & Dade (1781): Validated despite the testatrix not seeing signatures.

      • Cowser & Cowser (1996): Raised the issue of simultaneous presence of witnesses validating the will's execution despite one not being present at the signing.

  • Restrictions on Witnesses

    • Disqualified individuals:

      • Beneficiaries of the will

      • Spouses/civil partners of beneficiaries

      • Witnessing by such individuals forfeits their entitlement.

      • The Wills Act 1837 specifies this in Section 15.

  • Video Witnessing

    • Recent legal adjustments allow video witnessing from January 2020.

    • Video witnessing should be last resort, traditional methods preferred.

    • Government guidance available for this process.

  • Importance of Attestation Clause

    • While not required, an attestation clause provides a presumption of valid execution.

  • When Does a Will Become Effective?

    • A will is effective upon the death of the testator per Section 24 of Wills Act 1837.

    • Wording effect impacts when it takes effect concerning property versus beneficiaries.