Formal Validity vs Essential Validity in Law of Wills and Succession

Understanding the concepts of formal validity and essential validity is crucial in the law of wills and succession. Both elements must be satisfied for a will to be considered legally binding and enforceable. These concepts ensure that the will not only follows the required procedural steps but also adheres to the substantive legal principles governing testamentary dispositions.

Formal validity refers to the adherence to procedural requirements and statutory formalities necessary for a will to be recognised as legally valid. This includes the manner in which a will is drafted, signed, and witnessed. A will must be in writing, as oral wills are generally not accepted except under very limited circumstances, such as for soldiers in active military service. The testator, the person making the will, must sign the document to indicate their approval of its contents. Additionally, the will must be witnessed by at least two individuals who observe the testator signing the will and who then sign the document themselves in the presence of the testator. This ensures that the will reflects the testator’s genuine intentions. Furthermore, the testator must possess testamentary capacity, meaning they must understand the nature and effect of their actions, including the extent of their assets and the potential claims of those who might expect to benefit from the will. If these procedural steps are not followed precisely, the will might be declared invalid due to a failure to meet formal requirements.

Essential validity pertains to the substantive aspects of the will, focusing on the legal capacity of the testator to dispose of their property and adherence to legal principles regarding the distribution of the estate. For a will to be essentially valid, the testator must be of sound mind and of legal age, typically 18 or older, to make a will. The testator must also intend for the document to operate as their will, indicating a clear intent to dispose of their property upon death. Moreover, the will must be made voluntarily, without coercion, duress, fraud, or undue influence from others. Compliance with the jurisdictional laws governing the testator’s domicile is also crucial. If a testator makes a will under duress, such as being threatened to include someone as a beneficiary, the will can be contested and potentially invalidated due to lack of essential validity. Similarly, if the testator is found to have been mentally incapacitated at the time of making the will, it may be deemed essentially invalid.

The nature of the requirements and the impact of non-compliance distinguish formal validity from essential validity. Formal validity concerns the procedural and statutory requirements for executing a will. Failure to comply with these formal requirements, such as improper witnessing, typically results in the will being invalidated, regardless of the testator's true intentions. In contrast, essential validity focuses on substantive legal principles, such as the testator’s capacity and intent. Even if formal requirements are met, a will can still be invalidated if there are issues with essential validity, such as lack of capacity or making the will under duress. Jurisdictional considerations also differ between the two. Formal validity is generally dictated by the laws of the place where the will is executed, while essential validity is often governed by the laws of the testator’s domicile, involving different substantive legal principles depending on the jurisdiction.

In conclusion, both formal validity and essential validity are crucial in the law of wills and succession to ensure that a will is legally enforceable and reflects the true intentions of the testator. While formal validity addresses the procedural aspects of creating a will, essential validity ensures that the testator had the legal capacity and intent, and that the will was made free from undue influence or coercion. Understanding the distinction and interplay between these two types of validity is vital for anyone involved in the drafting, execution, or contesting of a will.
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