Who can make a will?

Wills play a critical role in shaping an individual’s legacy, and without one, their estate may not be distributed in accordance with their wishes but rather be subjected to intestacy laws. While some assume that writing a will is a straightforward process, it is not always so.

The legalities of writing a will

In this article, we will delve into the criteria for who can and cannot make a will and highlight essential considerations to bear in mind when doing so. Although many believe that anyone can create a will whenever they desire, this is not universally applicable. Some exceptional circumstances and rare occurrences in a person’s life can significantly impact their eligibility to create a will.

Creating a will is a crucial task that requires a thorough understanding of the legal requirements involved. To make a will in England and Wales, the testator must meet certain criteria, including having testamentary capacity, being of the required age, making the will voluntarily and without any undue influence or fraud, signing the document, and having it witnessed by two individuals.

What is testamentary capacity?

Testamentary capacity is a crucial element of will-making, and if it is later determined that the testator did not have it when signing the will, the document may be disregarded and deemed invalid. Therefore, it is essential to ensure that the testator meets the four-pronged criteria established in the case of Banks v Goodfellow 1870:

• The testator must understand the nature of making a will, and its consequences.
• The testator must have an awareness of the extent of his/her property.
• The testator must understand that there may be claims to their estate that are not written in the will.
• The testator must not be suffering from any illness that can impair his/her judgement in regard to disposing of his property.

If the advisor is unsure of the testator’s testamentary capacity, they can seek confirmation from a medical professional.

What is the age limit on writing a will?

The second element to consider is the age of the testator, who must be an adult aged 18 or above to make a normal, valid will under the Wills Act 1837 s.7. There is only the lower age limit on making a will; there is no upper age limit. The only exception to the age limit is for soldiers in active military service or seamen at sea, who can dispose of their personal estate as they could have before this Wills Act.

Avoiding undue influence in will writing

The third element concerns undue influence, which is when someone has forced or coerced the testator into making or changing a will to benefit them. To prevent a claim against the will on this ground, the advisor should ensure that only the client is present during the instructions-taking process.

Signing a will

The final element involves signing the will in the presence of two witnesses who see the testator sign the document. Before the pandemic, the witnesses had to be in the same room, but remote witnessing of wills via video call has become increasingly common since it was introduced by the Government in the pandemic. The video call must follow specific stipulations if this route is chosen, such as having the testator’s hand and the will visible at all times in a good quality image, and ensuring an uninterrupted process.

Legal requirements in Scotland

In Scotland, a will can be made by anyone who is twelve years old or older. The other requirements for a valid will include making the document voluntarily and without undue influence, having testamentary capacity, and the will being in writing, and being signed in the presence of a witness.

Avoid claims against a will

Understanding the criteria for making a will is essential to ensure that the document is valid and legally enforceable. By meeting these requirements, individuals can create a will that reflects their wishes and protects their estate.

This article has provided important information about the requirements for making a valid will in England, Wales, and Scotland. It is essential to meet all the criteria outlined here to ensure that the testator’s wishes are carried out, and their estate is distributed according to their desires. Any failure to comply with these requirements may result in the will being deemed invalid or challenged by potential claimants, which can cause unnecessary stress and uncertainty for the testator’s loved ones. Therefore, it is crucial to follow the guidelines strictly to avoid any claims being made against the estate after the testator has passed away.

If you are interested in learning more about the legalities and challenges of writing wills and estate planning, join one of CTT Group’s esteemed foundation training courses.