Requirements of a legally binding will

February 01, 2021

The requirements of a valid will are generally the same throughout the world with only a few exceptions. For a will to be legally binding a number of requirements must be met. They are complex, and professional advice should always be sought before making a will. If the requirements are not met the will is likely to be invalid, which could result in the deceased’s assets being distributed other than in accordance with the wishes.

Capacity

The testator (the person who made the Will) must have been mentally capable of making a valid will at the time when the will was made. To be capable of making a valid will the testator must:

  • be aged 18 years or over, although there are certain exceptions to this rule
  • be of sound mind, memory and understanding
  • know and appreciate what they are doing when they make a will

Intention

The testator must have clearly intended to dispose of the property, in the manner set out in the will, on the death. If the will has been validly executed and the testator was of sound mind when the will was made, intention will normally be assumed.

Undue Influence, coercion and fraud

If a testator is unduly influenced (coerced or pressured) or forced into making the will, a Court may set aside the will in its entirety or in part or if the execution of a will was obtained by fraud or if it was forged after the person’s death. Coercion is to persuade someone to do something by using any degree of force or threats, such as blackmail.

The format of the will

Normally, the will must be in writing for it to be valid, although there are certain exceptions, and signed by or on behalf of the testator, in the presence of 2 witnesses present at the same time. A will can be in pencil, ink or typed.

Signature

In the majority of cases the will must be signed by the testator, or by some other person in the presence and by their direction.

The testator should either sign the will or acknowledge the signature in the presence of 2 or more witnesses present at the same time. Some countries only require one witness.

Attestation

The testator should either sign the will or acknowledge the signature in the presence of 2 or more witnesses present at the same time. Each witness should then either attest and sign the will or acknowledge his signature, in the presence of the testator.

Alterations

Any alterations made in a will after it has been executed will not be valid unless the alterations have themselves been duly executed.

Revocation

As a general rule, a will is revoked:

  • upon marriage or civil partnership
  • by a later will or codicil or a written declaration of intention to revoke the will
  • by the testator intentionally destroying the will

Once a will has been revoked it will no longer be valid.

 

 

Excelsior is available to help you with these difficult decisions and we welcome any queries or concerns you may have. Feel free to contact us.

Free advice is available by text or email.

 

Excelsior World