The Will
A Will is a legal instrument that allows the Testator, who must be aged at least 18 years, to make a decision on how their Estate will be managed and distributed after their death. Since the Will in effect disposes of the Testator’s entire property and goods, it has to comply with several requirements in order to be valid. One of these requirements is for the Will to be duly executed.
How is a Will duly executed?
For deaths on or after 1 January 1983, a Will is duly executed as long as it complies with the requirements of Section 9 of the Wills Act 1837, as amended by Section 17 of the Administration of Justice Act 1982. According to these provisions, no Will is valid unless:
“a) It is in writing, and signed by the Testator, or by some other
person in his presence and by his direction; and
b) It appears that the Testator intended by his signature to give
effect to the Will; and
c) The signature is made or acknowledged by the Testator in the
presence of two or more witnesses present at the time; and
d) Each witness either:
i) attests and signed the Will; or
ii) acknowledges his signature, in the presence of the Testator (but
not necessarily in the presence of any other witnesses),
but no form of attestation shall be necessary.”
Section 9a – In writing and signed by the Testator
It is understood that any form of writing is accepted. Therefore, handwritten, type written or a Will printed by any form of technology is accepted as long as it is printed on a material and can be produced to a Probate Registry. No specific material is required and therefore, paper, cloth or almost anything is recognised. It has even been suggested that a wall or an eggshell would suffice. The important requirement is for the Will to be easily produced to a Probate Registry.
In addition, the Will needs to be signed by the Testator. The purpose of the Testator’s signature is to authenticate the document and confirm the Testator’s intention. The Testator’s signature can be in any form as long as it signifies his intention. A scrawl or the Testator’s personal stamp or their initial seal have been recognised as being the Testator’s signature. More recently, the Testator’s thumb print was recognised as his signature (Re Parsons [2002] WTLR 237).
What if the Testator cannot physically sign?
There may be situations where the Testator is blind or paralysed which may affect his ability to sign his Will. In such circumstances, a Will may still be validly executed by another person on behalf of the Testator. In the recent unreported case of Re Marsden (6 January 2006), it was confirmed that an attesting witness could sign a Will on behalf of the Testator and at his direction. However, clear evidence is required confirming that the signing was done at the Testator’s direction. We recommend using a special attestation clause confirming the Testator’s intention.
Section 9b – Intention of Testator
The signature of the Testator is evidence of his intention. For deaths before 1 January 1983, a Will had to be signed “at the foot or end thereof”. However, this is not the position any more. What is required is evidence that the Testator intended by his signature to give effect to the Will. In Wood v. Smith [1993] CH 90, it was held that where a Testator uses a standard Will form and completes it in his own handwriting, heading it with “My Will by X” but fails to sign at the bottom, the Will is still valid as long as there is sufficient evidence that the Testator intended his signature above to authenticate the Will. A Testator’s writing of his name as part of the attestation clause is also recognised as a signature intended to give effect to a Will (Weatherhill v. Pearce [1995] 1 WLR 592).
The crucial element is therefore the Testator’s intention.
Section 9c – Witnesses
A Will requires two disinterested witnesses or more. Since the Testator is disposing of his entire Estate, there is an exceptional need for authenticity. The essential requirement is that both witnesses should be present at the time when the Testator signs or acknowledges his signature. It is imperative that the witnesses were simultaneously present. If this is not the case, the Will may be challenged.
It is important to note that the witnesses are not required to acknowledge or read the Testator’s Will. The presence of the witnesses is merely to recognise that the Testator’s signature on the document is indeed his signature. It therefore does not matter if the witness thought that the document they attested was a contract or another legal document.
There have been circumstances whereby a Testator signed his Will in the absence of the witnesses and then produced the Will as being the Will he intended to give effect to and requested his witnesses to acknowledge his signature. The Will will still be valid as long as the Testator confirmed his intention to the witnesses and confirmed that the signature on the Will is his.
Section 9d – Signature of witnesses
Once the Testator has signed or acknowledged his Will, the witnesses must then attest the Will in the Testator’s presence but not necessarily in each other’s presence. There may be a situation where the Testator signs his Will in the presence of two witnesses and one of the witnesses (witness X) leaves. The other witness (witness Y) can still attest the Will in the Testator’s presence and the Testator can then at a later stage get witness X to attest the Will in his presence. In such a situation, the Will will be recognised as valid.
The requirements of the witnesses’ signature are similar to that of the Testator as discussed above. A properly drafted Will makes it clear that two witnesses actually saw the Testator sign the Will by using an attestation clause although a will may still be valid without such a clause. In Re Denning and Harnet v. Elliott [1958] 2 All ER 1, two names in different handwriting from each other and from the Testator’s signature on the reverse side of the Will were found to be there for the purpose of attesting the Will.
Presumption of Due Execution
A Will will be presumed as being duly executed if on the face of it, it was properly attested and executed.
Courts have been and continue to be robust in their application of the presumption of due execution. In order to challenge a Will on grounds of lack of due execution, strong evidence is required or the Court will revert to the application of the presumption. For example, in Channon v. Perkins [2006] WTL 425, although both witnesses were sure they had not signed a document in the Testator’s presence, the Court characterised the witnesses’ evidence as a near failure to recollect. Witnesses therefore need to positively remember specific events where something went wrong with their execution. It is also helpful if they can be traced to give evidence of lack of due execution. For example, in Murrin v. Matthews [2006] EWCH 3419, the presumption was rebutted because although the Will was signed by two witnesses, there was no address given for them nor could they be found. Since the sole beneficiary of the Will was “overwhelmingly likely” to have been involved in the preparation of the Will, and there was no evidence by the attesting witnesses as to its execution, the Will was found to be invalid.
Preliminary Steps
If you have strong grounds to suspect that a Will may not have been duly executed, it is important to take action and legal advice as soon as possible. You may wish to enter a Caveat with the Probate Registry to prevent a Grant of Probate being taken out and the assets of the Estate distributed. You can also contact the solicitors who prepared the Will and request details regarding the Will’s preparation and locate the witnesses to the Will to find out the circumstances surrounding the execution.
If you obtain strong evidence from the witness who can confirm that the Will was not duly executed, you can then make an application to the High Court of Justice asking the Court to pronounce against the validity of the Will.
Implications
Where a Will is successfully challenged and is pronounced invalid, the Estate will be administered according to the earliest valid Will. If there is not an earlier valid Will, then the Testator will have died intestate and the Estate will be distributed according to the Intestacy Rules. Our Intestacy Flow Chart under “Making a Will” section provides details of who the beneficiaries would be and who would be entitled to apply for Letters of Administration and distribute the Estate.
For a no-obligation chat about whether a Will is valid, or if you believe you have grounds to challenge a Will, please contact Mitra Mann on 01926 880722.
