Validity of Wills
Wills and Administration of Estates > Validity of Wills
What is Validity of Wills in SQE1?
Candidates commonly overlook the simultaneous witnessing requirement on SQE1 — sequential witnessing is invalid, a distinction examiners test heavily. For a will to be valid in England and Wales, it must comply with the formal requirements set out in section 9 of the Wills Act 1837 (as amended). The testator must also have the necessary testamentary capacity, know and approve the contents of the will, and not be acting under undue influence. If any of these requirements is not met, the will (or part of it) may be declared invalid.
Key Principles for SQE1
- Section 9 Wills Act 1837: formal requirements: (a) the will must be in writing; (b) it must be signed by the testator (or by some other person in the testator's presence and by their direction); (c) the testator must intend by their signature to give effect to the will; (d) the signature must be made or acknowledged in the presence of two witnesses present at the same time; (e) each witness must attest and sign the will (or acknowledge their signature) in the presence of the testator.
- Testamentary capacity: Banks v Goodfellow (1870): the testator must (i) understand the nature of making a will and its effects; (ii) understand the extent of the property being disposed of; (iii) comprehend the claims of those who might expect to benefit; and (iv) not be suffering from any disorder of the mind that influences the dispositions. Validity rules form a key part of wills and administration of estates, alongside revocation of wills and interpretation of wills and gifts.
- The golden rule (Kenward v Adams [1975]): where a testator is elderly or seriously ill, the solicitor should have a medical practitioner assess capacity and witness the will - this is best practice, not a legal requirement.
- Knowledge and approval: the testator must know and approve the contents of the will. This is presumed where the testator had capacity and the will was duly executed, but the presumption can be rebutted.
- Undue influence: a will is invalid if the testator was coerced into making it. Unlike contract law, there is no presumption of undue influence in wills - it must be proved (Wingrove v Wingrove (1885)).
- Witnesses: a beneficiary (or their spouse or civil partner) who witnesses a will does not invalidate the will, but the gift to that beneficiary is void under s.15 Wills Act 1837.
Exam tip
Both witnesses must be present at the same time when the testator signs or acknowledges the signature — sequential witnessing is invalid. For elderly or seriously ill testators, follow the golden rule by obtaining a medical assessment of capacity and getting it recorded. Remember that undue influence in wills is not presumed like it is in lifetime transactions — it must be affirmatively proved.
How This Appears in SQE1 Questions
SQE1 questions typically present a set of facts and ask whether the will is valid. Examiners test this distinction repeatedly. The key traps involve the witnessing requirements - both witnesses must be present at the same time when the testator signs or acknowledges the signature. Questions also test whether a gift to a witness is valid (the will is valid but the gift fails). Watch for scenarios involving elderly or ill testators where capacity is in doubt and the golden rule has not been followed.
Quick Example Scenario
Margaret, aged 89, signs her will in the presence of her neighbour, John. John signs as a witness. Margaret's carer, Sarah, was not in the room when Margaret signed but enters afterwards and signs as the second witness. The will is not validly executed. Section 9 requires that both witnesses be present at the same time when the testator signs or acknowledges the signature. Sarah was not present when Margaret signed, and there is no indication that Margaret later acknowledged her signature in the presence of both witnesses together. The will fails the s.9 formalities.
Common Mistakes Students Make
- Forgetting that both witnesses must be present at the same time - sequential witnessing is insufficient.
- Assuming a gift to a witness invalidates the entire will - only the gift to that witness (or their spouse/civil partner) fails under s.15.
- Confusing the Banks v Goodfellow capacity test with the Mental Capacity Act 2005 test - the Banks v Goodfellow test applies specifically to testamentary capacity.
- Assuming undue influence is presumed in wills - unlike contracts, it must be affirmatively proved.
Quick Summary
- This topic combines statutory knowledge with practical application.
- Master the key principles, understand the statutory framework, and practise applying these rules to realistic client scenarios.
Want to test this now? Try a few SQE1-style questions below before moving on.
Test Yourself
Test yourself
Quick check questions based on this article.
Question 1
Scenario
An elderly man aged 89 executes a will leaving his entire estate, valued at £700,000, to a distant cousin. The man's two adult children, who had expected to inherit, challenge the will. The man has been diagnosed with early-stage dementia, but his general practitioner confirms that at the time of execution he had lucid intervals. The will was prepared by a solicitor who recorded a detailed attendance note confirming that she assessed the man's capacity at the meeting. The solicitor noted that the man understood he was making a will, could describe the extent of his property, and acknowledged his children's existence but stated he wished to exclude them. The man gave a coherent reason for excluding his children, explaining they had not contacted him for several years. The man's neighbour, who was not present at the execution, states the man often appeared confused during their conversations. The will was witnessed by two independent witnesses who are not beneficiaries. The children argue the dementia diagnosis means the man lacked capacity. One of the children recently moved abroad for work, which has no relevance to the claim. The solicitor's attendance note was made contemporaneously with the execution. The man died three months after executing the will.
Is the will likely to be upheld as valid?
Question 2
Scenario
An elderly woman aged 89 has been diagnosed with early-stage dementia. She lives in a care home and requires assistance with daily activities. Her solicitor of many years visits her at the care home to discuss making a new will. The woman tells the solicitor clearly that she wishes to leave her estate equally to her two sons and nothing to her daughter, with whom she has had a long-standing disagreement. The solicitor notes that the woman can explain the reasons for excluding her daughter and understands the approximate extent of her estate. The solicitor arranges for the woman's general practitioner to assess her capacity on the same day that the will is to be executed. The GP examines the woman and confirms in a written report that, in his opinion, the woman has testamentary capacity at the time of the examination. The will is executed later that day in the presence of two independent witnesses. The woman reads the will and confirms it reflects her wishes. The daughter discovers the terms of the will after the woman's death in 2024 and wishes to challenge the will on the ground that the woman lacked testamentary capacity. The daughter argues that the dementia diagnosis is conclusive evidence of incapacity. The care home records show the woman had both good days and bad days in terms of lucidity. The solicitor's attendance note records that the woman was alert, engaged, and responsive during the meeting.
Which of the following best describes whether the will is likely to be upheld as valid?
Question 3
Scenario
An 82-year-old man lives with his adult son who provides daily care for him. The man makes a will leaving his entire estate to the son, excluding his two daughters who live elsewhere. The daughters discover the will after the man's death and wish to challenge it. They claim the son exerted undue influence over their father. The evidence shows that the son drove the man to the solicitor's office and waited in the reception area during the meeting. The solicitor confirms that the man gave instructions alone, without the son present. The solicitor made a detailed attendance note recording the man's wishes, his understanding of his estate, and his reasons for excluding the daughters. The man stated he wished to leave everything to his son because the son had cared for him for many years and the daughters had not maintained regular contact. The daughters argue that the son's role as the man's sole carer created a presumption of undue influence. The man had full testamentary capacity, confirmed by an independent medical assessment obtained by the solicitor. The solicitor followed the guidance in Larke v Nugus by keeping a full record of the will's preparation.
Which of the following correctly states the legal position regarding the daughters' claim of undue influence?
Practice with full exam-style questions
Related Topics
- Revocation of Wills for SQE1
- Intestacy for SQE1
- Interpretation of Wills and Gifts for SQE1
- SQE1 Wills and Administration of Estates: Complete Guide
Practise Validity of Wills Questions for SQE1
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