Requirements for a valid will
To properly execute a will, three essential requirements must be met:
- the will must comply with the formalities set out in the Wills Act Cap 12:02;
- the testator must have testamentary capacity; and
- the testator must attain the age of majority – at least eighteen (18) years old.
The Wills Act
Section 4 of the Act states that for a will to be valid, it shall be:
a) in writing;
b) signed at the foot or end thereof
(I) by the testator, or
(II) by some other person in the testator’s presence and by his direction;
c) the testator’s signature shall be
(I) made, or
(II) acknowledged by the testator;
c) in the presence of two or more witnesses who shall be present at the same time;
d) each witness must attest and sign the will in the presence of the testator; and
e) no form of attestation shall be necessary.
Testamentary Capacity
When a will is executed, there is a presumption that it was executed in accordance with the required formalities; that is, the testator had the necessary mental capacity to make a will. This presumption is, however, rebuttable by evidence to the contrary. According to Cockburn CJ in Banks v Goodfellow (1870) LR 5 QB 549, the test to determine whether a testator has the capacity to make a will is:
“he must… have a sound and disposing mind and memory. In other words, he ought to be capable of making his will with an understanding of the nature of the business in which he is engaged, a recollection of the property he means to dispose of, and of the persons who are the objects of his bounty and the manner in which it is to be distributed between them…”
An important part of testamentary capacity is intention. The testator must have intended to transfer his property under the will, and he must have understood that death was the event that would give effect to his dispositions – Broughton v Knight (1873) L R 3 P & D 64.
A testator is free to dispose of his property in any way. He can refuse to leave property to his family. He must be mentally competent at the time when he executes the will. If the testator lacks mental capacity, the whole will may fail. Where it can be shown that the incapacity affected a part of the will, that part may be excluded, and the other dispositions under the will may be upheld.
