The balancing act: analysing the role of wills formalities in fulfilling testamentary intent in England and Wales

Abstract

Wills formalities in England and Wales have remained relatively unchanged since they were first enshrined in section 9 of the Wills Act 1837. The formalities are strict in their application, and their draconian nature occasionally results in cases where authentic wills are declared invalid due to errors in their execution. In such cases, the formalities defeat, rather than protect, testamentary intent. There is a growing call for reform of the formalities, including the English Law Commission’s recently concluded project on wills. The general consensus of these other works is that the introduction of an intention-based dispensing power, such as that in Australia, would provide an adequate solution to the problem in England and Wales. However, this thesis disembarks from such a conclusion, and provides a more holistic picture of the issue. A brief discussion on formalism creates the theoretical foundation for the dissertation, and acknowledges that a strict application of the formalities has both benefits and drawbacks. A critique of the current law in England and Wales explains that the problem originates in section 9’s lack of flexibility and its necessity for hard and fast rules in an area of law that requires nuance. Australia’s intention-dispensing power is then considered as a potential solution, however this thesis acknowledges that the flexibility of this provision can result in the unbidden expansion and overreach of the dispensing power, and thus recommends that, should a dispensing power be adopted in England and Wales, such reform would greatly benefit from restrictions placed on the dispensing power in a effort to curtail the potential growth of an inherently flexible provision.

Date of Award	Dec 2025
Original language	English
Awarding Institution	Queen's University Belfast
Supervisor	David Capper (Supervisor) & Heather Conway (Supervisor)