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A will is a statement of person's intentions concerning the disposal of his estate after his death. The person making the will is known as a testator or testatrix. According to s.9 of the Wills Act (1837), a valid will must be
- in writing
- signed by the testator or his agent
- in the presence of two witnesses, who must also sign. The witnesses may not be a beneficiaries under the will, according to s.15.
There are a very few circumstances in which these provisions can be dispensed with. An example is that a serviceman or servicewoman about to go into actice wartime service can make a will informally, or a valid deathbed will. For other ways in which one person can benefit another posthumously without the formality of a will, see below.
If there is no valid will, then the estate of the deceased is dealt with according to the rules of intestacy. Upon death the executors of the deceased become the full legal owners of the estate and responsible for settling the debts of the estate and then dividing the estate according to the terms of the will. An administrator performs the same function on intestacy.
All wills are placed in the public domain, a fact which has led to the peculiarly English phenomenon of the secret trust, which use the mechanism of a trust to dispose of the estate outside of a will.
Other methods by which person A can make posthumous gift to person B, without the formality of a will, include the following.
- A makes B a joint owner of some property of his. When A dies, B receives A's share by the right of survivorship, not by inheritance
- A can taking out a pension plan naming B as the recipient of any death benefits
- A can take out a life assurance policy, naming B as the beneficiary
None of these methods of disposing of property amount to a testamentory gift, so do not require the formality of a will to validate them.