Validity of Wills and Codicils

Introduction

A will is effective only if the law recognises it as **valid**. The law sets **four distinct hurdles**, and a document that fails any one of them is not a will. The testator must have **testamentary capacity**; they must **know and approve** its contents; the document must be **executed in the manner required by section 9 of the Wills Act 1837**; and it must **not have been procured by undue influence, fraud or forgery**. Validity is not the end of the story, however: even a valid will may be **revoked** — by a later will, by destruction, or automatically by marriage or civil partnership — while **divorce** has a dramatic effect on gifts to the former spouse, and **alterations** after execution are subject to a rule of their own in **section 21**. This chapter works through capacity, knowledge and approval, undue influence, the s.9 formalities, the s.15 witness-beneficiary rule, privileged wills, revocation, the effect of marriage and divorce, alterations and the doctrine of **mutual wills**.

Assessment focus

For the SQE1 **FLK2** assessment you must be able to apply the **four requirements for validity** to a client scenario and identify precisely which one is in issue. The most heavily examined points are: the **Banks v Goodfellow** four-limb capacity test (and its distinction from the **Mental Capacity Act 2005**); the **section 9** formalities, especially the **simultaneous-presence** requirement; the **section 15** witness-beneficiary rule; **revocation** by destruction, marriage and divorce; and **alterations** under section 21. Questions are single best answer questions (SBAQs) set in realistic client scenarios; you will be expected to **work through the requirements in order** rather than leap to a conclusion from one suggestive fact. This is a closed-book assessment — recall every statutory section and the leading authorities from memory.

Study tips

1) Memorise the **four limbs of Banks v Goodfellow** and remember capacity is tested **at the moment of execution** (narrow exception: **Parker v Felgate**). 2) Keep **Banks v Goodfellow** (testamentary capacity) separate from the **MCA 2005** (statutory wills via the Court of Protection). 3) Learn the **four s.9 formalities** in order and the meaning of **'in the presence of'** (line-of-sight, not mere mental awareness). 4) For **s.15**, the marital/civil-partnership relationship is tested **at the date of execution**; a superfluous witness is saved by the **Wills Act 1968**. 5) Distinguish the **four modes of revocation**: later will, destruction (s.20), marriage (ss.18/18B), divorce (ss.18A/18C) — only the first three revoke the **whole** will. 6) For **alterations (s.21)**, the key question is **apparency**: if the original words are still apparent they stand; obliteration beyond apparency is a **partial revocation**.