Making a Will
Produced in partnership with Keith Bruce-Smith and Katie Walsh of Harcus Sinclair LLP
Making a Will

The following Wills & Probate guidance note Produced in partnership with Keith Bruce-Smith and Katie Walsh of Harcus Sinclair LLP provides comprehensive and up to date legal information covering:

  • Making a Will
  • Who can make a Will?
  • Formal validity
  • Taking instructions
  • Execution
  • Rectification
  • Review
  • Revocation
  • How can a Will be challenged?

When someone dies, it must be established whether they made a Will and whether that Will is valid. If the deceased did not leave a valid Will, they are intestate and the estate will be administered in accordance with the intestacy provisions found in Part IV of the Administration of Estates Act 1925 (AEA 1925).

Dying intestate can lead to various complications including issues over the guardianship of minor children and assets being distributed in a way other than as the deceased would have wished.

Who can make a Will?

A testator must be over the age of 18 at the date of execution of the Will and possess the requisite mental capacity.

The only exception to this is where the testator has privileged status—ie they are a soldier in military service or seaman at sea. In such a case, a Will made by a minor would be valid.

On 13 July 2017, the Law Commission launched a consultation on the potential reforms to the law of Wills in England and Wales, and the practitioner is advised to keep abreast of updates in this regard.

Mental capacity

The Mental Capacity Act 2005 (MCA 2005) introduced a statutory test for capacity from 1 October 2007. Since then, there has been some uncertainty as to whether the test for mental capacity laid down in Banks v