How do I write a valid will?

A will is a legal document that sets out what happens to someone's estate when they die. The person writing the will to bequeath their estate is known as the testator.

For a will to be valid, it must demonstrate:

• The legal formalities. These are set out in Section 9 of the Wills Act 1837.
• Mental capacity of the testator. They knew they were signing a will and understood its consequences.
• Intention of the testator. They intended to make the version of the will that they signed.

So long as you follow these three criteria, you do not need a solicitor to draft a will — even a note on a napkin would do. However, we strongly advise you to seek professional advice, especially if the estate is complex. A professional will can cost less than £200 to draft, whereas a poorly drafted will can cost far more than this in terms of upset, time and mistaken intentions.

Formalities

Under Section 9 of the Wills Act 1837, no will shall be valid unless:

• (a) it is in writing, and signed by the testator or by some other person in his presence and under his direction; and
• (b) it appears that the testator by his signature intended to give effect to the will; and
• (c) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
• (d) each witness either:
  • (i) attests and signs the will; or
  • (ii) acknowledges his signature in the presence of the testator (but not necessarily in the presence of any other witness).

An attestation clause is not necessary.

Testamentary capacity

This means the testator has the mental capability to make a will. The Banks v Goodfellow test is used to confirm whether the testator had capacity:

• Did they know the document was a will, and what its consequences would be?
• Did they know the estate's approximate value?
• Did they consider everyone they ought to have considered?

Testamentary capacity should be present when the will is executed. However, Parker v Felgate (1883) showed it can be acceptable to have capacity when giving instructions to draft the will but not during its execution (for example, if a testator has dementia which has since deteriorated), so long as the will was demonstrably carried out to the testator's instructions, and the testator knows they are signing a will.

Intention (also known as 'knowledge and approval')

The testator intended to make a will, and intended to make the actual will they signed. They must know all the contents of the will and approve of them. Intention is usually presumed once capacity and the formalities are established, but that presumption can be challenged — for instance, where the testator was blind, illiterate, or the will was signed on their behalf, or where there are suspicious circumstances such as a major beneficiary having helped prepare it. In those cases, whoever is putting the will forward must show the testator genuinely knew and approved of what it contained.