Written by Daniel Andrews, Partner & Solicitor, Cramp & Mullaney LLP
Last reviewed: April 2026
Making a will sounds straightforward, and in many respects it is. But the legal requirements for a valid will in England and Wales are precise, and a document that does not meet them is not a valid will at all, regardless of how clearly it sets out the deceased’s intentions. Understanding what the law requires is the first step to ensuring that your will actually does what you intend it to do.
The Legal Requirements for a Valid Will
A valid will in England and Wales must satisfy the requirements of section 9 of the Wills Act 1837. The person making the will, known as the testator, must be at least 18 years old. There are limited exceptions to this age requirement for members of the armed forces on active service, but for most people the minimum age is 18. The testator must have testamentary capacity, meaning they must understand the nature of making a will, the extent of the property they are leaving, the claims of those who might reasonably expect to benefit, and how the document will distribute their estate.
The will must be in writing. An oral will has no legal effect in England and Wales. The testator must sign the will, or direct someone else to sign it in their presence if they are physically unable to sign themselves. The signature must be made or acknowledged in the presence of at least two witnesses who are both present at the same time. Each witness must then sign the will in the presence of the testator.
The Rules About Witnesses
The rules about witnesses are specific and it is important to get them right. A witness must be present when the testator signs or acknowledges their signature, and must sign the will themselves in the testator’s presence. A witness does not need to know that the document they are witnessing is a will, but they must see the testator sign or acknowledge their signature.
Critically, a witness should not be a beneficiary under the will, and nor should the spouse or civil partner of a witness. If a beneficiary witnesses a will, the will itself remains valid but that beneficiary loses their entitlement to any gift made to them in the will. This is a relatively common and entirely avoidable error. The witnesses should be independent adults with no financial interest in the estate.
Testamentary Capacity and Undue Influence
A will can be challenged on the grounds that the testator lacked testamentary capacity at the time they made it, or on the grounds that they were subject to undue influence that overrode their own free will. Capacity challenges most commonly arise where the testator was suffering from dementia or another cognitive impairment. Undue influence challenges arise where someone exerted improper pressure on the testator to make a will in their favour.
Both types of challenge can be difficult and expensive to pursue. Having a will prepared by a solicitor, who will assess capacity and keep a contemporaneous file note of their observations, provides a degree of protection against such challenges. Where there is any doubt about capacity, a medical assessment at the time of making the will is advisable.
What Should a Will Contain?
A well-drafted will should begin by revoking all previous wills, which ensures there is no ambiguity about which document governs the distribution of the estate. It should appoint executors, who are the people responsible for administering the estate. It should deal with specific gifts of particular assets or sums of money to named beneficiaries. It should include a residuary clause dealing with everything not specifically gifted. And for parents of minor children, it should appoint guardians.
A will should also consider what happens if a named beneficiary predeceases the testator. Without a substitution clause, a gift that cannot be made because the intended beneficiary has already died will fall into the residue of the estate, which may not be what the testator would have wanted.
If you are based in Kent and would like advice on making or updating a will, our lifetime planning team at Cramp and Mullaney can help. We offer a fixed fee initial consultation and will take the time to understand your circumstances before advising you.
If you are based in Kent and need advice on wills, probate or estate planning, Cramp & Mullaney LLP can help. We advise clients across Tunbridge Wells, Tonbridge, Sevenoaks, Ashford, Folkestone, Maidstone and the wider Kent area from our offices in Eastbourne (01323 720581) and Battle (01424 533222), East Sussex. We offer a fixed fee 30-minute initial consultation. Visit cmlaw.co.uk or email info@cmlaw.co.uk.
This article is for general information only and does not constitute legal advice. The law in this area can be complex and the right approach will depend on your individual circumstances. If you need specific advice, please contact Cramp & Mullaney LLP on 01323 720581 (Eastbourne) or 01424 533222 (Battle), or email info@cmlaw.co.uk. We are authorised and regulated by the Solicitors Regulation Authority (SRA No. 598851).
