Wednesday, 29 September 2010

Making a will? See a competent expert ...

Generally, it is desirable to make a will and to avoid the rules applicable upon intestacy (death without a will).  When a will is “executed” (i.e. made) certain strict formalities apply – (Wills Act 1837).  In addition, at the time of giving instructions for the making of a will, a testator must have “testamentary capacity”.  The basic test for capacity was set out 140 years ago in Banks v Goodfellow (1870) LR 5 QB 549.  The testator must understand the nature of the act (i.e. making a will) and its effects.  He must also understand the extent of the property and be able to understand and appreciate the claims to which he ought to give consideration.

This test, whilst remaining good basic law, has given rise to considerable difficulties.  Some of these are discussed by Peter Boynton in the Solicitor’s Journal – “The Last Litigation” - 27th September 2010. The article highlights some of the considerable difficulties which have arisen in recent cases :-

In the Estate of Key [2010] EWHC Ch 408

Perrins v Holland and others [2010] EWCA Civ 840 – (here, the costs of the case exceeded the value of the estate).

These cases are not necessarily straightforward to understand without a good grasp of “succession law” but they show that it is essential for those who prepare wills to adhere to the relevant guidance and to be sure that the testator has testamentary capacity.  Sometimes, medical opinion may be needed to assist with this  – see BMJ “How to assess capacity to make a will”   This is a difficult area of both law and practice.

Most consumers appear to think that all will writers are solicitors.  This is far from the case – see Law Gazette January 2010.  Unfortunately, will writing remains an unregulated activity and this makes it very important to be sure about the qualifications of anyone undertaking this work.

Interestingly, there is no legal requirement to register a will but it should be retained in a safe place.  Many testators either leave the will with their solicitor or, often, it is simply kept somewhere at home.  However, there is a registration service available – see here.   This could be worth considering since some problems regarding “lost wills” might be avoided.  It is only necessary to register the place where the will is kept.

See Law Society - Wills


  1. Even registering where the will is kept isn't always enough. My mother lodged her with her bank, but it still took then three or four weeks to find it. It was a good job that my brother and I already knew she wanted to be cremated.

  2. Another Wills Registration service is


    Lost, missing, presumed never written wills are a problem as are those questionable by age or fraud. Many solicitors have "will banks" but the fact that the will is deposited with the solicitor is forgotten. The person dies and the intestacy rules are applied.

    Registration of wills would solve many problems. There is very good reason to believe that a large number of estates are dealt with as intestacies when, in fact, there is a will which has not come to light.

  3. I believe the Principal Registry of the Family Division will also accept wills for deposit with them.

  4. Marcin - thank you, indeed you can.



    and Here

    The service is not vastly used - probably because will writers like to offer a custody service in order to perhaps obtain the later probate work.

    There are calls for a compulsory will registration system - e.g. here

  5. Making a Will is incredibly important however if your executors are unaware of it's whereabouts then your Will becomes useless. There are Will registering services now available online that allows the testator to register their Will.

  6. This just underlines the importance of seeking the right advice and experienced will writers to avoid any complications at such a stressful time for your loved ones.