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Tony Wickenden: Downton Abbey lessons on will writing

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The Sunday night Downton fest and the preceding X Factor competition represents a juxtaposition that may, at first sight, seem strange and then on reflection be appreciated as being somewhat aligned.

One has affected voices, histrionics, desperation and tears and the other is the X Factor.

I appreciate that I am way behind the journalistic curve by referencing Downton though. Those far a quicker off the mark than me were all over aspects of this latest season by using Matthew Crawley’s lack of a will to (understandably) launch into a strongly reasoned argument for the benefits of having one, a valid will that is.

But it turns out there was one – a will – although not “a will as such” according to Lord Grantham.

Matthew did leave a written (and presumably) witnessed document that was sufficient to satisfy the requirements for a valid will. A grander examination of what “Matty boy” said in the will, how it was expressed, signed and witnessed did not take place in the programme.

That could have got a bit dull but perhaps at the end the programme announcer could have announced that it qualified for a hour’s structured CPD – subject to there being clearly stated “learning outcomes” expressed at the beginning of the programme. But we digress.

At this point I thought it might be worth reminding you what the requirements for a valid will are, in anticipation of any Downton-inspired client enquiries. There are four main requirements.

Firstly, a will must be in writing unless it is a privileged will but no special form of words is required. It can be hand-written or typed. It doesn’t have to be on any special form.

A privileged will is exempt from complying with the Wills Act and can only be made by a member of the armed forces engaged in actual military service or in conditions similar to active military service. One wonders if this rule could be stretched to incorporate stewards at a Tottenham v Arsenal/Chelsea/West Ham game.

Second, the testator or testatrix must sign the will. The courts will accept as a signature whatever mark was intended to be their signature, and this can include a cross or other mark. Normally the signature is made at the end of the will but if the will is signed elsewhere it can still be valid.

Third, the testator or testatrix must intend to give effect to the will before signing it.

Testamentary intent involves the testator having subjectively intended that the document in question constitutes his or her will at the time it was executed.

Ordinarily, the opening recital, eg “I, Matthew Crawley, do hereby declare this instrument to be my last will and testament …” will usually suffice.

This could, if you wish be written on a piece of paper that can conveniently drop from the book in which you place it when, after your death someone looks through your things.

You could also sew it inside your favourite teddy bear or, perhaps, deposit it for safekeeping and make it clear to all where it is. But that would be too easy and not nearly dramatic enough for a TV representation of your post-death drama.

And fourth the testator or testatrix’s signature must be witnessed by at least two witnesses.

They must both be present at the same time when the testator or testatrix signs the will. The witnesses must acknowledge the signature in the presence of the testator or testatrix though not necessarily in the presence of each other.

Get it? Got it? Good !! Go testate!!

Tony Wickenden is joint managing director at Technical Connection

Access full CPD, technical updates and business generation ideas through Techlink Professional.  Go to www.techlink.co.uk  and click the Contact Us link at the top of the screen and then request your free trial from the drop down menu.

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