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LAST WILL AND TESTAMENT

Section 9 of the Wills Act 1837 states that in order for a will to be valid it must:

 

  • be in writing and signed by the testator;
  • the testator must have the intention to give effect to the will (if the testator signs the will at the end this usually is accepted as showing the necessary intention);
  • the testator must sign the will in the presence of two or more witnesses present at the same time; and
  • each witness either attests and signs the will or acknowledges his signature in the presence of the testator.

 

 

If the requirements of Section 9 of the Wills Act 1837 above are not complied with the will is invalid.

 

The Wills Act 1837 specifies that a will must have a minimum of 2 witnesses. There are no rules, as such, which govern who may or may not act as witnesses. All that is required is that the witnesses are capable of attesting the testator’s signature at the time that it is made. The witnesses must, therefore, be physically and mentally present when the testator signs the will and must be able to see him/her do so.

 

It should be noted that if a person who is a beneficiary under the will witnesses the will then, the signature is perfectly valid and the will is properly executed, but that beneficiary will lose his/her benefit under the will.  

 

 

If changes or additions are to be made to the will this should be done by a codicil or the revocation of the original will and the execution of a new will.

 

A codicil is a testamentary instrument which is executed in the same way as a will and which supplements the terms of an existing will. A codicil can be used to add a provision to a will, amend a provision or revoke a provision in a will. A codicil must comply with the same requirements and formalities as the will itself if it is to be admitted to probate. Codicils can be used if the testator wishes to make minor changes to an existing will. If the testator wishes to make major changes to a will, it is usually advisable to revoke that will and execute a new will.

 

 

A will is always revocable during the lifetime of the testator. A will is revoked by:

 

  • Marriage - a testator’s marriage or civil partnership automatically revokes any will made before that marriage or civil partnership.
  • Divorce - if a married testator separates from his/her spouse and no divorce or annulment order is made, a testator’s will is unaffected and remains valid in all respects even if it contains provisions in favour of the testator’s spouse. However, if the testator is divorced then the decree absolute of divorce operates as a revocation of the will.
  • Destruction - a will can be revoked by destruction but there must be both the act of destruction and the requisite intention.
  • Revocation by a later will or codicil - a will can be revoked, in whole or in part, by a later will or codicil.  

 

 

This Last Will and Testament template is fully comprehensive and provides several options like the option to appoint guardians where the testator has children under the age of 18, the option to leave gifts to charities and the option to leave the testators’ assets to a named person in the event that the assets do not pass to the intended beneficiaries because for example the intended beneficiaries die before the testator.



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