In the United Kingdom there are a few requirements for a will to be valid and able to be executed. There are mainly 3 conditions that must be met and are as follows. The person making the will (the testator in legal terms) must have the capacity, intention, and compliance with the Wills Act 1837[1].
What constitutes capacity?
For the will to be valid and able to be executed the person making the will (the testator) must firstly be over 18 and have sound mental capacity. The case of Banks v Goodfellow[2] stated that the testator must have a ‘soundness of the mind’ to execute the will. What this means is that the testator understands that he is writing a will and what that constitutes. He must also understand the extent of all his property and assets. Lastly, to demonstrate capacity the testator must consider the moral implications of his decisions - he must have considered his family when writing the wills, although he does not have to act on these considerations. The law presumes that the testator is of sound mental capacity and it must be proved with evidence if he is not.
What constitutes intention?
When creating the will, the testator must have the intention of specifically creating a will and not some other document. He must also be aware of everything that is put into the will and approve of how the assets will be distributed. If the testator has the capacity, it will generally be presumed that he also had the intention to create the will. There are exceptions to this rule where the testator is blind, deaf or when someone has signed the will on their behalf. In this case, there will need to be a statement of intention added to the will that confirms that it was made with the full consent of the testator.
Compliance with the Wills Act 1837
The formalities are set out in Section 9 of the Wills Act 1837. Under this section, it makes it clear that for the will to be valid it needs to be in writing and signed by the testator. There is also a requirement that the signature is made in the presence of two or more witnesses. This is an essential formality – if the signature is only witnessed by one person the will shall be declared invalid. These witnesses do not need to know the contents of the will and how the assets are distributed but must be present for the signature. Those witnesses in turn must then attest and sign the will, confirming that they have witnessed the signature.
Who can be a witness?
The witness can be anyone who has the capacity of understanding what is going on and that a will is being made. If a beneficiary (receiver of any assets) is chosen to be a witness, the will shall still be valid, but any gifts made to that person will be cancelled. Thus, ideally a beneficiary should avoid being a witness to the will.
[1] https://uk.westlaw.com/Document/I612BA710E42311DAA7CF8F68F6EE57AB/View/FullText.html
[2] Banks v Goodfellow (1870) LR 5 QB 54.
