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R-E-S-P-E-C-T the Validity Conditions of a Will

The Estate of the late Aretha Franklin

A jury in the United States has recently determined that a document found in the late Aretha Franklin’s sofa is a valid final will. This has made news headlines as the document itself was apparently found within a notebook beneath the living room sofa cushions. This may come as a shock to some people, as how could something so informal create a valid testament for a multi-million dollar estate?

Although this handwritten will has caused a dispute between the family regarding who would inherit the estate, the jury considered that the will was, indeed, valid.

What constitutes a valid Will?

Although the legislation in England and Wales differs from the legislation in the United States, both jurisdictions state that, in order for a will to be valid, the following conditions must be met:

  1. The person making the will must be of sound mind;
  2. The will must be in writing; and
  3. The will must be signed by the testator (the person making the will) in the presence of at least two witnesses who must also sign the will.

Respecting the conditions / The conditions

The above conditions are not as straightforward as they may seem. Taking the first condition of ‘sound mind’, capacity has a vast scale and can be difficult to determine. The testator may need a capacity assessment carried out if there is any question over their mental capacity to make a will. A lack of capacity or a concern over a person’s capacity when making a will can lead to further issues and potentially a claim against their estate. This is one of the reasons why it is so important to ensure that there is no question over capacity when a will is being made. You can read more about capacity in our article.

The second condition it that the will must be in writing. In the recent case mentioned above, the will of the late Aretha Franklin was in writing, although handwritten, it was still recorded in the proper format.

The third condition is there to protect against wills made under duress, and also to have recourse if there ever is a question over the validity of the will. For example, if there is a question of validity, the court could ask for the witnesses of the will to swear that they witnessed the testator signing the will at the time of its creation.  It is crucial that both witnesses are present when the testator signs and they also sign in the testators and each other’s presence.

All the above conditions must be met in order for a Will to be valid.  There are other reasons why a Will may be proven to be invalid but that is outside the scope of this article.

The future of Wills

With artificial intelligence and digital technology advancing at breakneck speeds, it is likely that this will impact every profession in the coming decades. It is difficult to imagine that the law surrounding the validity elements of what constitutes making a valid will could ever be relaxed enough to allow for virtual signing, for example.

However, the legislation in relation to making a will has remained largely unchanged since the introduction of the Wills Act 1837. With this in mind, the Law Commission will be holding a consultation regarding the reform on the law around making a will in September 2023, so watch this space!

As you can see a lot can go wrong with Will writing and this is often the most important document you will ever sign.  Our experienced private client solicitors would be pleased to answer any queries you may have and to assist you in making your Will.

For more information on the above please contact our Wills, Trusts and Estate administration lawyers on [email protected] or 01737 854 500.


Although correct at the time of publication, the contents of this newsletter/blog are intended for general information purposes only and shall not be deemed to be, or constitute, legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article. Please contact us for the latest legal position.

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