What Do You Need to Think About When Making a Will?

Key Points

- A valid will in England and Wales must meet the formalities in section 9 of the Wills Act 1837: it must be in writing, signed by the testator, and witnessed simultaneously by two independent adults who each sign in the testator's presence.

- The standard nil-rate band is £325,000 (frozen until April 2030) and the residence nil-rate band adds up to £175,000 for qualifying estates, potentially allowing married couples to pass on up to £1 million free of inheritance tax.

- From 6th April 2026, business property relief and agricultural property relief are capped at 100% for the first £2.5 million of combined qualifying assets, with 50% relief above that threshold; business owners and farmers with estates above those figures need to review their wills now.

- Pensions will be brought into the scope of inheritance tax for deaths on or after 6 April 2027, which may require many people to reconsider how their estate is structured.

- Without a will, the intestacy rules govern distribution of the estate, which may produce outcomes that do not reflect your wishes and can leave an unmarried partner without any entitlement.

Making a will is one of the most straightforward steps a person can take to protect their family and ensure their assets pass to the people they choose. If you die without one, the Administration of Estates Act 1925 sets out a rigid order of priority for inheritance that may bear little resemblance to your intentions. An unmarried partner, for example, has no automatic entitlement however long the relationship has lasted.

A will also allows you to appoint executors to administer your estate, name guardians for any minor children, and give directions about funeral arrangements. Where inheritance tax is a concern, the structure of your will can make a meaningful difference to how much of your estate is preserved for your beneficiaries.

Making a Valid Will

Who can make a will

Anyone aged 18 or over with the mental capacity to do so can make a will. There is a limited exception for members of the armed forces and mariners at sea, who may in some circumstances make a valid informal "privileged will" at an earlier age, but this does not apply to most people.

Mental capacity for these purposes is assessed by reference to the four-limb test established in Banks v Goodfellow (1870) LR 5 QB 549, which requires the testator to understand the nature and effect of making a will, the extent of the property they are disposing of, the claims of those who might reasonably expect to benefit, and that no disorder of the mind distorts those judgments. The Mental Capacity Act 2005 provides a parallel framework applicable in other contexts, and the Law Commission's final report published in May 2025 has recommended that the Mental Capacity Act standard should replace the Banks v Goodfellow test for all testamentary capacity assessments. That recommendation has not yet been enacted, so the Banks v Goodfellow test remains the current law.

Formal requirements

Section 9 of the Wills Act 1837 (as amended by the Administration of Justice Act 1982) sets out the requirements for a valid will:

The will must be in writing.

The testator must sign it, or another person must sign it in the testator's presence and by their direction.

The signature must be made with the intention of giving effect to the will.

The testator must sign, or acknowledge the signature, in the simultaneous presence of two or more witnesses.

Each witness must then sign, or acknowledge their own signature, in the testator's presence.

Witnesses do not need to know the contents of the will, but they must be present at the same time when the testator signs or acknowledges the will. A beneficiary named in the will, or that beneficiary's spouse or civil partner, should never act as a witness: under section 15 of the Wills Act 1837, any gift to a witness or to their spouse or civil partner is void, even though the rest of the will remains valid.

The Law Commission's report on modernising wills law (May 2025) recommended introducing a court power to dispense with the formality requirements where the document clearly reflects the testator's genuine intentions, and also proposed that electronic wills should be permitted using a reliable system capable of identifying the testator and witnesses. Neither recommendation has been enacted at the date of this article, so paper wills with wet-ink signatures remain the legal standard.

Marriage or remarriage revokes an existing will in England and Wales (unless the will was made in clear contemplation of that specific marriage). Divorce does not revoke a will but treats any gifts to a former spouse as lapsed. If your circumstances change, review and update your will promptly. The Law Commission has recommended abolishing the marriage-revocation rule in future legislation, but that reform is not yet law.

Planning Your Estate

Assets and beneficiaries

Before instructing a solicitor, it is worth drawing up a list of your assets: property held in your sole name or jointly, savings, investments, pension plans, life insurance policies, and personal possessions of value. Jointly owned property may pass automatically by survivorship rather than through your will, so understanding the basis on which assets are held matters.

Your will specifies who benefits from your estate. You can leave specific items, fixed sums, or a share of the residue to family members, friends, or charities. Where a beneficiary is a child, a person with a disability, or someone with significant debts, the way a gift is structured, for example through a trust, can make a real difference to whether it achieves its purpose. Pearcelegal's solicitors can advise on the full range of options through their wills and estate planning service.

Executors and guardians

The executors you name are responsible for obtaining a grant of probate, collecting assets, settling debts, and distributing the estate according to your instructions. You can appoint family members, trusted friends, or professional executors. Where the estate is likely to be complex or contested, professional executors may reduce the risk of disputes. If you have children under 18, your will is also the place to record who you would wish to act as their guardian if both parents died.

Suppose a Solihull couple both have children from previous relationships as well as children together. Without a carefully drafted will, the intestacy rules might not reflect what each of them wants, and the children from prior relationships could be left out entirely. A will drawn up with advice from a solicitor allows each of them to provide for all the children in the proportions they choose.

Contesting a will

A will can be challenged on various grounds, including lack of testamentary capacity, failure to comply with the formalities in section 9 of the Wills Act 1837, undue influence, or fraudulent calumny. Separately, certain family members and dependants may apply to the court under the Inheritance (Provision for Family and Dependants) Act 1975 if they feel the will (or the intestacy rules) fail to make reasonable financial provision for them. Eligible claimants include spouses, civil partners, former spouses who have not remarried, cohabiting partners of at least two years, children, and anyone financially maintained by the deceased. A claim must be issued within six months of the grant of probate or letters of administration. If you are concerned either that your will might be challenged or that you have been inadequately provided for, our solicitors can advise on contesting a will.

Inheritance Tax

The nil-rate band and residence nil-rate band

Inheritance tax is charged at 40% on the part of the taxable estate that exceeds the available nil-rate band. The standard nil-rate band has been frozen at £325,000 since 2009 and remains at that level until at least April 2030 under current legislation.

The residence nil-rate band adds up to a further £175,000 where a qualifying residential property is left to direct descendants (children, grandchildren, or equivalent). This means an individual can potentially pass on up to £500,000 free of inheritance tax if a home is included. Both the nil-rate band and the residence nil-rate band are transferable between spouses and civil partners on death, so a surviving spouse may be able to use the unused proportion of a deceased spouse's allowances. A married couple who each use their full entitlements could therefore pass on up to £1 million free of inheritance tax on the second death.

The residence nil-rate band is tapered away for estates whose net value exceeds £2 million, reducing by £1 for every £2 above that threshold. An estate worth more than £2.35 million would lose the residence nil-rate band entirely on a single person's death.

Leaving assets to a spouse, civil partner, qualifying charity, or community amateur sports club is exempt from inheritance tax regardless of value, which is one reason the structure of a will matters.

Business and agricultural property relief from 2026

From 6 April 2026, the rules governing business property relief and agricultural property relief changed in a material way. Previously, qualifying business and agricultural assets received 100% relief with no cap on value. From that date, 100% relief applies only to the first £2.5 million of combined qualifying assets per person. Qualifying assets above £2.5 million receive 50% relief, producing an effective inheritance tax rate of 20% on that portion. Any unused allowance is transferable between spouses and civil partners, so a couple may together shelter up to £5 million in qualifying assets at 100%.

Shares in companies listed on the Alternative Investment Market are now restricted to 50% relief regardless of value, and that 50% relief does not use up the £2.5 million allowance.

These changes were originally proposed with a £1 million cap at the Autumn Budget 2024. Following extensive representations from farming and business organisations, the government revised the figure upward to £2.5 million in December 2025, with the transferability of unused allowances between spouses confirmed at the Autumn Budget 2025. The new rules apply to deaths on or after 6 April 2026, and also to gifts of qualifying assets made on or after 30 October 2024 where the donor dies on or after 6 April 2026 and within seven years of making the gift.

For a family business owner or farmer whose qualifying assets exceed £2.5 million by a wide margin, these changes may create a substantial inheritance tax liability that did not previously exist. A will drawn up before April 2026 may no longer reflect an accurate picture of what the estate owes, and the interaction between the nil-rate band, the residence nil-rate band, and the new relief allowance should be reviewed with a solicitor. Our tax planning service can assist with this assessment.

Pensions and inheritance tax from April 2027

Under current law, undrawn pension funds generally fall outside the estate for inheritance tax purposes. The Finance Act 2026 received Royal Assent on 18 March 2026 and will bring most unused pension funds and pension death benefits within the taxable estate for deaths on or after 6 April 2027. This forthcoming change may affect many people who have structured their estate planning around the current treatment of pensions. Transfers to a surviving spouse or civil partner will remain exempt from inheritance tax. For people who die before 75, beneficiaries can withdraw pension funds free of income tax once the inheritance tax due has been settled; for those dying at 75 or older, withdrawals will also be subject to income tax in the hands of the beneficiary. If your pension forms a substantial part of your overall wealth, reviewing your will and broader estate plan before April 2027 is advisable.

Frequently Asked Questions

What happens if I die without a will?

If you die without a valid will, your estate is distributed according to the intestacy rules set out in the Administration of Estates Act 1925. For a married person with children, the surviving spouse receives all personal possessions and a statutory legacy of £322,000 (for deaths on or after 26 July 2023); any remaining estate is divided equally between the spouse and the children. An unmarried partner receives nothing under the intestacy rules regardless of the length of the relationship.

Who can witness my will?

Any adult with capacity can act as a witness. There is no statutory minimum age for a witness, but an independent adult over 18 is strongly recommended. A beneficiary named in the will, or that beneficiary's spouse or civil partner, must not witness the will: under section 15 of the Wills Act 1837, the gift to that beneficiary would be void even if the rest of the will remained valid.

When should I update my will?

You should review your will after any significant change in personal or financial circumstances: marriage, civil partnership, separation, divorce, the birth of a child or grandchild, a substantial change in asset values, the death of a named beneficiary or executor, or a change in your wishes. Remember that marriage revokes a will automatically unless it was made in contemplation of that specific marriage.

Can I choose who inherits my estate?

You have considerable freedom in deciding who benefits from your estate, but certain family members and financial dependants retain the right to apply to the court under the Inheritance (Provision for Family and Dependants) Act 1975 if they consider the provision made for them to be unreasonable. The court has a broad discretion to reorder the distribution of the estate, so where you wish to exclude or substantially reduce provision for an eligible claimant, legal advice before finalising the will is worthwhile.

Do I need a solicitor for my will?

There is no legal requirement to use a solicitor, but a will that does not comply with the formalities in section 9 of the Wills Act 1837 may be void, and one that is poorly drafted may not achieve what you intend. Where your estate involves inheritance tax, business assets, property held in trust, children from more than one relationship, or beneficiaries with particular needs, professional advice is the most reliable way to ensure your wishes are carried out. If your circumstances also require lasting powers of attorney or arrangements for the administration of your estate after death, a solicitor can address those at the same time.

About the Author

Jodie Hall (SRA number 666606) is a Solicitor in Pearcelegal's Private Client team, advising on wills, lasting powers of attorney, probate, estate administration and trusts. She qualified in 2023 at a firm in London before joining Pearcelegal later that year. Jodie is regulated by the Solicitors Regulation Authority (SRA ID 666606).

Last reviewed: 8th June 2026.