What is a Will? UK Guide to Making a Valid Will

At a glance

• What a will is: a legal document in which you (the testator) state who should inherit your estate and who should manage the administration after your death.
• Who can make one: any person aged 18 or over who has mental capacity (England and Wales).
• The legal test for capacity: the four-limb common law test in Banks v Goodfellow (1870) LR 5 QB 549 — you must understand the nature of a will, the extent of your estate, who has a claim on it, and be free of any disorder of the mind that distorts those judgements.
• Formal requirements: in writing, signed by the testator, and signed (or acknowledged) in the presence of two witnesses who are both present at the same time — Wills Act 1837, s.9.
• Witness trap: a witness (or their spouse or civil partner) who is also a beneficiary forfeits their gift — Wills Act 1837, s.15.
• Marriage revokes a will automatically unless the will was expressly made in contemplation of that marriage — Wills Act 1837, s.18.
• Without a will: the intestacy rules in the Administration of Estates Act 1925 apply. Unmarried partners, stepchildren, and close friends receive nothing.
• Statutory legacy (intestacy): £322,000 to a surviving spouse or civil partner where children also survive, updated 26 July 2023 — SI 2023/758. Verify the current figure at GOV.UK.

This guide covers England and Wales only. Scotland and Northern Ireland have separate rules.

This article provides general legal information, not advice about your specific circumstances.

What a will is — and what it is not

A will is a legal document in which you state what should happen to your estate after you die. Your estate comprises everything you own at the date of death: bank accounts, property, investments, vehicles, personal possessions of financial or sentimental value, and any business interests.

The document does three main things:

1. It names beneficiaries — the people or organisations who receive your assets.
2. It appoints executors — the people you trust to administer the estate, pay debts, and distribute what remains.
3. It can make specific provisions — appointing guardians for children under 18, setting up trusts, directing specific gifts, and recording preferences about funeral arrangements.

What a will cannot control

A will does not govern everything that passes on death. Two important categories operate outside the will entirely:

Jointly owned property held as joint tenants. If you own a property as a joint tenant (the most common form of co-ownership for couples), the right of survivorship applies. When one joint tenant dies, their interest passes automatically to the surviving joint tenant, regardless of what the will says. The will only controls property held as tenants in common, where each owner has a defined share.

Pension death benefits and life insurance nominations. Most pension schemes operate a discretionary trust. The scheme trustees decide who receives any lump sum death benefit, guided but not bound by a nomination form you complete during your lifetime. A nomination is not legally binding on the trustees, but it carries significant weight. Life policies written in trust also pass outside the estate. Neither asset is controlled by the will.

Understanding these limits matters because jointly owned property and pension funds are often the largest assets a person holds. Getting the ownership structure and nomination forms right is just as important as getting the will right.

The legal requirements for a valid will

To be valid in England and Wales, a will must satisfy the formal requirements in section 9 of the Wills Act 1837. Those requirements are:

1. In writing. Any medium that produces a readable, permanent record — handwritten or typed — qualifies. An oral (nuncupative) will has no legal effect for civilians in England and Wales.
2. Signed by the testator. You must sign the will, or someone else must sign it in your presence and at your direction if you are physically unable to sign yourself. Your signature must be intended to give effect to the whole document.
3. Two witnesses present at the same time. You must sign (or acknowledge your earlier signature) in the simultaneous presence of two witnesses. Both witnesses must then sign the document in your presence. The witnesses do not need to know the contents of the will.

Getting any one of these three requirements wrong makes the will invalid. Courts have no power to overlook a defective execution — there is no discretion to cure a will that was witnessed by only one person, or signed outside the witnesses' sight.

The rule on witnesses who are also beneficiaries

Section 15 of the Wills Act 1837 provides that if a witness — or the witness's spouse or civil partner — is also a beneficiary under the will, the gift to that person is void. The witness forfeits their legacy entirely.

The will itself remains valid; the gift simply disappears. This is one of the most common and most avoidable errors in homemade wills. The fix is simple: witnesses should be adults with capacity who have no financial interest in the will — a neighbour, colleague, or friend not named in the document.

The Wills Act 1968 provides a limited saving where the will is validly attested by at least two other witnesses who are not beneficiaries, but it is far better practice not to rely on this.

Mental capacity: the Banks v Goodfellow test

A will made without the testator having mental capacity at the time of signing is not valid. The governing test is the common law standard from Banks v Goodfellow (1870) LR 5 QB 549, which requires that the testator:

• understands the nature of making a will and its effect;
• understands the extent of the estate they are disposing of;
• understands and can appreciate who might reasonably expect to benefit (even if they choose not to benefit them); and
• is not suffering from a disorder of the mind that poisons or perverts their sense of right in relation to the disposition.

A diagnosis of dementia or mental illness does not automatically disqualify someone from making a valid will. What matters is whether, at the moment of execution, the testator had capacity under these four tests. It is precisely this uncertainty — about what the testator understood at a particular point in time — that drives the majority of will disputes in the courts.

If there is any doubt about capacity, a contemporaneous medical assessment and a carefully documented solicitor's attendance note are the most reliable protections against a later challenge.

What happens when marriage or divorce changes the picture

Marriage revokes a will

Under section 18 of the Wills Act 1837, marriage (or the formation of a civil partnership) revokes any earlier will unless:

• the will was expressly made in contemplation of that specific marriage, or
• the disposition was made in exercise of a power of appointment and the property would in default pass to the testator's personal representatives.

This is the most commonly overlooked trap in will-making. A will made before your wedding is automatically invalid the moment you marry, unless it was drafted to survive the marriage. If you do not make a new will after the wedding, you die intestate.

Divorce does not revoke the will — but it changes it

Section 18A of the Wills Act 1837 provides that, following a decree absolute (or a final order of divorce), the former spouse is treated as having predeceased the testator for the purposes of any gift made to them and any appointment of them as executor. The gift falls into the residue; the appointment lapses.

The will is not revoked — it remains valid — but it operates as though the former spouse played no part in it. If the former spouse was the only named executor, you may find the will leaves no one appointed to administer the estate. A prompt review after any change in relationship status is good practice.

What the intestacy rules say when there is no will

If you die without a valid will, the Administration of Estates Act 1925 governs who inherits. The rules follow a strict priority order, and they do not accommodate personal wishes.

If you leave a spouse or civil partner and children

The surviving spouse or civil partner receives all of your personal chattels, plus the statutory legacy — currently £322,000 (updated 26 July 2023 by SI 2023/758; check the current figure at GOV.UK) — and one half of anything above that figure. The children share the other half equally, in equal shares per stirpes (meaning a grandchild steps into the share of a deceased parent).

If you leave only a spouse or civil partner (no children)

The surviving spouse or civil partner inherits everything.

If you are not married and have no civil partner

The estate passes to your children. If you have no children, it passes to your parents; if no parents survive, to your siblings; then more distant relatives in a defined order. The intestacy rules do not recognise any relationship that falls outside their categories.

The unmarried partner problem

An unmarried partner — regardless of how long you have lived together — receives nothing under intestacy. The law does not recognise cohabitation. An unmarried partner can make a claim under the Inheritance (Provision for Family and Dependants) Act 1975, but this requires litigation, takes time, costs money, and has an uncertain outcome.

This is perhaps the most important reason for making a will. It is the only reliable way to ensure that someone outside the intestacy hierarchy inherits from you.

How to make a valid will: a practical overview

Making a valid will does not have to be complicated. The core steps are:

1. Take stock of your estate. List your assets (property, savings, investments, pension nominations, life policies, personal belongings, business interests, digital assets) and liabilities. Note which assets are held jointly and whether they pass by survivorship.
2. Decide who benefits and in what proportions. Name primary and substitute beneficiaries. Think about what happens if a beneficiary dies before you.
3. Appoint executors. Choose at least two — a primary and a substitute — who are organised, willing, and likely to outlive you. For complex estates, a professional co-executor may be appropriate.
4. Consider guardians. If you have children under 18, appoint a guardian. Speak to the person you have in mind before naming them.
5. Get the will drafted. You can draft your own will, use a reputable template for a simple estate, or instruct a solicitor or regulated will writer. Complex circumstances (second marriages, business assets, overseas property, trusts, inheritance tax planning) usually justify professional help. Errors in a homemade will frequently only surface after death.
6. Execute the will correctly. Sign it in the simultaneous presence of two adult witnesses who are not beneficiaries, and ask both witnesses to sign in your presence. Date the document.
7. Store it safely and tell the right people. Keep the original in a secure location — a solicitor's strongroom, a bank, or the Probate Service's secure storage — and make sure your executors know where to find it.
8. Review it after major life events. Marriage, divorce, the birth of a child, a significant change in assets, or the death of a named executor or beneficiary are all good reasons to review. See our guide on changing your will.

Further detail on the formal requirements is available from GOV.UK.

Why any adult should make a will

The practical case for making a will is not about the size of your estate. It is about who you want to be in control when you cannot be.

Without a will, the people left behind navigate the intestacy rules, which may produce an outcome entirely at odds with your wishes. Unmarried partners, friends, stepchildren, and carers — the people who may matter most in practice — receive nothing by default.

A will also reduces the administrative burden on executors and beneficiaries at an already difficult time. An estate with a clear, valid will can move through the probate process more efficiently than one that must be administered under intestacy.

And for anyone with children under 18, a will is the only way to name a guardian. Without one, the question of who looks after the children may ultimately be decided by a court.

Last reviewed: June 2026 · Next review due: June 2027 or on legislative change.