2020-02-17
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Wills Act 1837

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Posted by Martin Oliver on 03 May 2013

Martin Oliver - Contesting a Will Lawyer
Martin Oliver Partner

The first ground to determine whether a will is valid, is to identify whether the will has been completed correctly. Since the will in effect disposes of the person making the will's entire property and goods, it has to comply with several requirements in order to be valid.

The first requirement being that the testator must be aged at least 18 years when signing the will. In addition, for deaths on or after 1 January 1983, a will must be executed in accordance with Section 9 of the Wills Act 1837 (as amended by Section 17 of the Administration of Justice Act 1982).

Section 9 of the Wills Act 1837

No will is valid unless:

  1. It is in writing, and signed by the testator, or by some other person in his presence and by his direction.
  2. It appears that the testator intended by his signature to give effect to the will.
  3. The signature is made or acknowledged by the testator in the presence of two or more witnesses present at the time.
  4. Each witness either:
  • attests and signs the will; or
  • acknowledges his signature, in the presence of the testator (but not normally in the presence of any other witnesses), but no form of attestation shall be necessary.

The above parts of Section 9 of the Wills Act 1837 are broken down in more detail below. 

In writing and signed by the testator ( section 9 (i) Wills Act 1837)

It is understood that any form of writing is accepted.  Therefore, handwritten, typewritten or a will printed by any form of technology is accepted.  No specific material is required and therefore, paper, cloth or almost anything is recognised, providing it can be produced to a Probate Registry.  It has even been suggested that a wall or an egg shell would suffice.  

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 Parson [2002].  

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.  However, clear evidence is required confirming that the signing was done at the testator’s direction and legal advice should be sought.

Intention of the testator ( section 9 (2) Wills Act 1837)

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 of each page and at the end of the will”.  However, this is not the position anymore.  What is required is evidence that the testator intended by his signature to give effect to the will.  In the case of Wood v Smith [1993] 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 XX” but fails to sign at the bottom of each page, the will is still valid as long as there is sufficient evidence that the testator intended his signature on the first or last page to authenticate the will.  

Witnesses (section 9 (3) Wills Act 1837)

To be valid, a testator’s signature on a will must be witnessed by two individuals who themselves are not beneficiaries.  Since a 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 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 witnesses thought that the document they attested was a contract or another legal document.

Signature of witnesses (section 9 (4) Wills Act 1837)

Once the testator has signed or acknowledged his will, the witnesses must sign the will in the testator’s presence.  It is important to note the witnesses do not need to sign 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 without having signed the will.  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 sign the will in his presence.  In such a situation, the will will be recognised as valid.  

Presumption of due-execution

A will will be presumed as being duly executed if on the face of it, it is properly executed.

Courts have been and continue to be robust in their application of the presumption of due-execution.  In order to contest a will on the grounds of lack of due-execution, strong evidence is required or the court will revert to the application of the presumption.  For example, in the case of Channon v Perkins [2006], although both witnesses were sure they had not signed a document in the testator’s presence, the court characterised the witnesses’ evidence as a mere 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 the case of Murrin v Matthews [2006], 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 witnesses as to its execution, the will was found to be invalid.  

Preliminary steps

If you have strong grounds to suspect that a will is not valid, 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 witnesses who can confirm that the will was not executed correctly, you can then make an application to the High Court of Justice asking the court to confirm the will is invalid.  

Implications

If a party is successful in contesting a will and there is no previous valid will, then the testator will have died intestate and the estate will be distributed according to the Intestacy Rules.

About the author

Martin specialises in inheritance disputes such as contesting a will and litigation involving wills and trusts.

Martin Oliver

Martin specialises in inheritance disputes such as contesting a will and litigation involving wills and trusts.

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