Whether you are looking to write your will, or trying to administer someone's estate after they have died, you may wonder what a legally valid will should look like. Can you write your own will by hand? Is the handwritten will you have found in a loved one's house legally sound? It is important to understand the rules regarding handwritten wills to ensure your estate is protected and managed according to your wishes - or to make sure, as the executor, you verify the validity of a last will and testament before carrying out its instructions. Executing a will that is not legally valid can introduce the risk of disputes among family members or other beneficiaries, and if it cannot be proved that the will is considered valid, its contents will not take effect.

The simple answer to the question above is that, in some circumstances, handwritten wills can be legal provided they meet the requirements outlined in section 9 of the Wills Act 1837. There is no requirement for a typed will, but there are other conditions that must be met before the document can be considered legally binding. Here, the contentious probate experts at JMW Solicitors explain what a person making a will (also called a testator) needs to do to make sure their will is legally valid, and how the executor of that person's estate can verify the same before beginning the estate administration process.

When is a handwritten will legal?

To ensure a will is valid and legal, whether handwritten or not, the testator must be 18 years of age or older. The document itself must be signed by two independent witnesses who are not beneficiaries of the estate - meaning that this role cannot be fulfilled by anyone to whom you intend to leave a gift. They must witness the testator signing the will, and then sign their own names. This acts as a way to testify that the will was signed by the testator and that he intended, by his signature, to give effect to the contents of the will.

If a testator is unable to sign his will, it can be done by another party at his or her direction.  Legal advice should be sought in these circumstances to make sure all the formalities are met.

There are other requirements to make the will legal - for example, the person making the will must be of sound mind, meaning that they have the required mental capacity to make decisions for themselves. There is a specific test that must be satisfied, and if there is any doubt as to a testator’s capacity, they ought to contact a solicitor, who will explain what is required to satisfy themselves of their capacity and, often more importantly, document that to make any challenge to the will less likely. When all of these requirements have been met, a handwritten will should be considered legally valid. If you have any concerns, working with a solicitor can help to ensure that your will is legal. They can verify that you are of sound mind and have the mental capacity to make the will. They can arrange for the signatures of two witnesses or sign the will themselves, and may also offer to store your will and keep it safe until it is needed.

Are there risks with a handwritten will?

There are risks associated with a handwritten will. For example, if handwriting is difficult to read, this could increase the risk of mistakes being made in administering the estate after your death. Such wills may be subject to forgery or alterations, which can lead to the will being contested, and make it difficult to determine what the person's intentions were.  Further, without the involvement of a professional, family members may be more likely to say that a handwritten will did not reflect the testator’s intentions, that they didn’t have capacity to make it, or were influenced to make it in a particular way.

If there is any doubt about a will's veracity, or a possibility that a handwritten will could have been tampered with, forged, or signed under undue influence, family members or other potential beneficiaries can challenge the will in court. This can be a drawn-out process that delays the probate process and adds significant costs. When a will is challenged, the court may rely on an earlier draft to understand your intentions. This may deviate from your plans, and is a much greater risk with a handwritten will than with a typed will.

Another consideration is that you will need to find a safe place to store your will. If your will is written by a solicitor, they will usually offer a service where your will can be stored safely, making it easier to access and execute when you die. Without this service, your executor may need to search for your will after your death. 

How can you avoid contentious probate?

Following the legal requirements when writing your own will can help to minimise the risk of a contested will or contentious probate situation from arising after you die. The first is to make sure that your will is written in clear, plain language so that there can be no ambiguity or confusion about your intentions. Use specific wording when outlining your wishes, and clearly name all beneficiaries and their entitlements. If you are making a handwritten will, make sure your handwriting is unambiguous and clear and follows the formal requirements set out above.

There are particular legal grounds on which a will can be challenged. These include if your potential beneficiaries believe that your will was amended without your knowledge, or written while you were not of sound mind. A way to try to prevent this in advance is to discuss your intentions about your will with beneficiaries ahead of time. If certain individuals are surprised that they are excluded or receive less than they expected when the will is revealed, this can lead to conflict. However, if you have explained your reasons ahead of time, this can mitigate feelings of injustice that could otherwise lead to a challenge.

Circumstances change over time, and an outdated will can lead to disputes. Regularly reviewing and updating your will ensures it reflects your current wishes and family situation and reduces the possibility of family members saying the will was not consistent with your wishes. If significant life events occur, such as marriage, divorce, or the birth of a child, update your will promptly to account for these changes. If you were to get married, that will automatically revoke your will, meaning that even if you have a will, it will not be followed in the event of your death, as your estate would pass under the rules of intestacy.

You should also know that spouses, children, or financial dependants may have the right to challenge your will if they believe they have not been adequately provided for. Consider leaving reasonable financial provision for these people to minimise this risk. If you wish to leave them out of the will, document your reasons clearly and seek legal advice to minimise the risk of a successful challenge.

In fact, working with a solicitor is the best way to prevent a will from being contested. There will be little doubt as to the legitimacy of the will, and your solicitor can verify that you were of sound mind when you produced the document. The team at JMW can help you to make sure all of your property and assets are accounted for, and consider every potential beneficiary. We can also advise you on making gifts to loved ones, and the Inheritance Tax implications of these decisions, or act in the capacity of a professional executor. Our professional executors will act impartially, which can reduce the likelihood of conflicts arising during the administration process, and help to prevent disputes between family members. 
To learn more about writing your own will in compliance with the law, or to have a solicitor from JMW help you to verify whether a loved one's handwritten will is genuine, contact our expert wills and estate planning solicitors today, and where a dispute arises as a result of any will, contact our will disputes team. Call us on 0345 872 6666 or use our online enquiry form to request a call back at your convenience.