Wills made outside England and Wales
If a will was made outside England and Wales, English Law will accept its validity if it was made:
In accordance with the formalities required by the state where it was made.
In accordance with the formalities required by the state where, at the time the will was made or at death, the testator was domiciled or had his habitual residence or of which he was a national.
A will made on a ship or in an aircraft is treated as valid if it was completed in accordance with the law of the country which the ship or aircraft has the closest connection.
Wills which deal with property that is situated abroad.
If the will deals with immovable property such as a holiday villa, it will be recognised as valid by English law if it complies with the formalities required by the law of the state in which the property is situated.
When considering the provisions of a will (such as the appointment of an executor) in respect of any foreign property the testator had, it is also necessary to consider the foreign law relating to the property and the making of wills, even if the will was made in the United Kingdom. Some states have restrictions in relation to who can inherit property and the tax laws relating to property differ from those of English law. The procedure and formalities of making a will that is recognised by the foreign country as a valid document of title to the property are also usually different from those of England and Wales.
Wills made by a member of the armed forces engaged in actual military service or a seaman at sea
If the will was made by a member of the armed forces engaged in military service or a seaman at sea no formalities are required to be followed to make, or indeed to revoke, a will; their wills can be made irrespective of age, do not have to be in writing and can be made orally in conversation provided there is an intention that the conversation shall have a testamentary effect. If written they do not need to be witnessed. These privileged wills are not revoked by lapse of time or a return to civilian life (or in the case of seamen to land), and while there is some doubt as to whether or not entry into a marriage or a civil partnership not in contemplation when the will was being made revokes such a ill, the better opinion is that it does not.
Wills made in England or Wales
If a will is made in England or Wales (other than the will of a member of the armed forces or seaman at sea) is to be considered to be a valid will the following formalities must have been complied with:
The will must be in writing. Any form of writing, handwritten, typed or printed and in any language will suffice, but it must be in writing and any other expression of wishes is not effective. Oral expressions of the testator’s wishes and wills recorded on sound-tapes or videotapes are therefore not valid wills
The will must have been signed by the testator or by someone in his presence and at his bequest. The signature need not be the testator’s full name or indeed his name at all as long as a court will be satisfied that the mark which was made was intended as the testator’s signature and that it was intended to authenticate the document as his will. An inked thumb print has been held by a court to be a sufficient signature, as has the testator’s initials impressed by his seal, but the courts have not yet accepted electronic signatures
The testator’s signature on the will must have been made or acknowledged by the testator in the presence of two or more witnesses who were present at the same time. Although the Wills Act refers to two or more witnesses, it is only necessary and usual to have two witnesses to the testator’s signature, but they must have been of age and mentally capable
Each witness must have signed the will and either signed or acknowledged his signature in the testator’s presence
It must be apparent that the testator intended to give effect to the will by signing it. In practice the testator’s signature and those of the witnesses usually appear at the end of the will to show that they are intended to give effect to all that goes before the signatures as the testator’s will. If words appear in the will after the signatures of the testator there can be problems, in that the probate registry will insist upon the witnesses swearing an affidavit or making an affirmation to confirm that the words were in the will when it was signed and were not added later by the testator or anyone else. If the words were added later of course, they are ineffective and invalid and are not admitted to probate.
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