Ask what makes a will valid and you get two very different answers: the solicitor’s, which is a short list of conditions, and the internet’s, which usually involves a notary, a seal, and a vague sense that the document has to be lodged somewhere official. The law of England and Wales is narrower and odder than either. It takes no interest in whether your will is typed or handwritten, one page or forty, drafted by a firm in the City or copied off a website at the kitchen table. It cares about six things, and it is entirely unforgiving about all of them.
The six things a valid will needs
- You were 18 or over when you made it. The only exceptions are the old ones for service personnel on actual military service and mariners at sea, and they are as rare as they sound.
- You had testamentary capacity: you understood what you were doing and what you were giving away.
- You intended the document to take effect as your will, rather than as a draft, a note of your thinking or a letter to the family.
- You knew and approved its contents, freely, without anyone leaning on you.
- It is in writing and signed by you, or signed by someone else at your direction while you watch.
- Two witnesses were present together when you signed or acknowledged your signature, and each of them then signed while you watched.
Meet all six and a will written in biro on a single sheet of A4 binds as tightly as one bound in blue ribbon. Miss one and the document falls away entirely, taking every careful decision in it. The estate then passes under an earlier will if one survives, or under the intestacy rules if none does. There is no partial credit, and for most defects there is no way for a court to repair the damage afterwards.
What does section 9 of the Wills Act 1837 require?
The signing formalities have barely moved in nearly two centuries. Section 9 of the Wills Act 1837 requires the will to be in writing and signed by you, or by someone else in your presence and at your direction; it requires that signature to be made or acknowledged in front of two or more witnesses present at the same time; and it requires each witness then to sign, or acknowledge their signature, in your presence. Two phrases do the damage. "Present at the same time" means both witnesses in the room together, watching, not one on Tuesday and the other on Thursday. "In your presence" means you watching them, which rules out posting the will round for signature.
One further trap sits in section 15. If a beneficiary, or the spouse or civil partner of a beneficiary, acts as a witness, the will stays valid but their gift is void. The rest of the will survives; their inheritance does not. Video witnessing, allowed temporarily for wills made between January 2020 and January 2024, has expired, so the witnesses have to be physically in the room. The witnessing rules in full are worth ten minutes before you put pen to paper, because this is where more wills fail than anywhere else.
What is testamentary capacity?
The test comes from a case decided in 1870, Banks v Goodfellow, and it is still the one the courts apply. To have capacity to make a will, you must be able to:
- Understand the nature of the act: that you are making a will, and that it takes effect when you die.
- Understand, in broad terms, the extent of what you own.
- Understand the claims of the people who might expect to be provided for, whether or not you choose to provide for them.
- Be free of any disorder of the mind that distorts those judgements, such as a delusion about a particular relative.
Capacity is judged at the moment the will was made, not before or after, and that matters both ways. A diagnosis of dementia is not a bar: many people with one retain capacity for a straightforward will, particularly earlier in the day. Equally, someone with no diagnosis at all can lack capacity on the day in question.
The Mental Capacity Act 2005 governs decisions made for a person during their lifetime, which is the territory of a lasting power of attorney. Wills have kept their own older test. Where capacity might later be questioned, the sensible move is the one solicitors call the golden rule: have a doctor assess capacity at the time of signing, and record what they found. A file note written on the day is worth more than any amount of family testimony five years later.
Knowing what you signed, and signing it freely
Capacity is not the whole of it. You must also know and approve the contents of the will, which is usually presumed if you had capacity and signed a document you had read. The presumption weakens where the circumstances are unusual: where the person who benefits most also arranged the drafting, where the will was signed in a hurry, or where the person signing was blind, frail or could not read it themselves. In those cases the will should carry an attestation clause recording that it was read over and understood.
Undue influence is a higher bar than most families expect. Persuasion, pleading, even a certain amount of emotional pressure, none of it invalidates a will. What does is coercion: pressure that overpowers your own wishes so that the will records somebody else’s. It has to be proved by whoever alleges it, and it is proved rarely, which is precisely why an independent professional taking your instructions on your own is worth so much when a will is later challenged.
What a valid will does not need
- A solicitor. There is no legal requirement for one, which is why homemade wills exist at all.
- A notary, a seal, a stamp or any kind of official approval. None of these features in English law.
- Registration anywhere. Recording a will with the National Will Register makes it findable, not valid.
- Legal jargon. "I leave my house to my sister Anne" is a perfectly good clause. Borrowed Latin adds risk, not weight.
- A date, strictly speaking, though an undated will causes real trouble in working out which document came last. Always date it.
- An attestation clause, though a will without one may need a sworn statement from a witness before probate is granted, years later, when the witnesses may be hard to find.
Is a handwritten will valid?
Yes, if it meets section 9. Handwriting is not the problem. What sinks homemade wills is everything around the words: gifts that no longer exist, beneficiaries described so loosely that two people answer the description, no residue clause so part of the estate falls into intestacy, and alterations made after signing. Section 21 is blunt about that last one: an amendment made after execution has no effect unless it is itself signed and witnessed, so crossing out a name and writing another above it usually leaves the original gift standing. Even a paperclip mark invites questions about a missing page.
Can a will stop being valid?
A perfectly valid will can be undone later, sometimes without anybody noticing. Marriage or civil partnership revokes an existing will automatically unless it was made in contemplation of that marriage, which catches thousands of people every year and is worth reading about before a wedding rather than after: does marriage revoke a will covers the exception in detail. Destroying the will with the intention of revoking it works too, under section 20, and so does making a later will that revokes the earlier one.
Divorce behaves differently, and the difference surprises people. A decree absolute does not revoke your will. Instead the law treats your former spouse as having died before you, so gifts to them fail and their appointment as executor lapses, while the rest of the will carries on. That can leave an estate falling to substitute beneficiaries you chose in another life, which is why divorce and your will is a review trigger rather than a filing matter.
The rules are old, and reform is only a recommendation
It is fair to ask why an 1837 statute still governs this. The Law Commission has spent years examining exactly that, and has recommended a modernised framework covering electronic wills, the marriage revocation rule and the capacity test among other things. None of it is law. Until Parliament acts, the Victorian rules are the ones that decide whether your will works, and articles telling you that electronic signatures are fine, or that video witnessing is still allowed, are describing a world that does not exist yet.
Making validity somebody else’s problem
Almost none of what goes wrong here is about the wishes. People know who they want to look after. They come unstuck on the mechanics: a witness who turns out to be a beneficiary’s husband, a residue clause nobody wrote, an alteration made in good faith the following spring. Those are exactly the failures a second pair of professional eyes catches before they matter.
Every Willful will is drafted from your answers and then read by a qualified solicitor who checks the things a form cannot: that the gifts work, that the residue is covered, that nothing in the document collides with the execution rules. It arrives with signing instructions written for your specific will, so the ceremony itself is a matter of following six steps in one sitting. See how the process works, or read what a solicitor-reviewed will costs. The law still asks for ink, two witnesses and one room. We make sure that is all it asks for.