The Wills Act 1837 sets out requirements for a valid will – including that the will must be signed and witnessed. But what can you do if the will is not signed properly? Is there any way around it? There are old cases about signatures being accepted which are simply ‘X’ (probably in the days before high levels of literacy), or ‘your loving mother’, but is that still the case today?
This was the question that faced me recently when a client came to see me with her mother’s will. The will had been drafted by a will writer for a low fee. The fee did not include checking that the will had been executed properly – there was an additional £25 cost for that service. The mother had decided to deal with execution herself. Accordingly, she had arranged for two witnesses to attend and witness her signature and she had then put the will away safely.
Unfortunately, when she died and my client found the will, she noticed that her mother had not actually signed. There were two spaces by her name – one for her signature, and one for her to print her name and she had only put her name to the latter. The will contained specific bequests, and our client knew that her mother had gained peace of mind knowing that she had managed to leave her affairs as she wanted to, so she was keen to get probate of the will.
I managed to contact the witnesses, and take detailed statements from them about the circumstances in which the will was executed. Luckily, they both had a good memory of the event – being asked to attend the deceased’s house, being told that they were witnessing her will and watching her write her name out. Neither had realised that there were two spaces for her name – both thought that they were witnessing her signature when they signed.
I drew up detailed affidavits of their evidence to present to the Probate Registry, and was delighted to hear this week that the evidence had been accepted and a Grant of Probate has now been issued. Whilst there has been a happy outcome in this case, it could easily have been different – and of course the costs have now been far higher than the original £25. The lesson is to get advice on the execution of the document if you want to be certain it is done properly – and definitely seek advice if you find yourself in the position of my client, so that your case can be presented effectively to the Probate Registry.
The current Law Commission consultation on wills contains a section about being able to regularise wills where, as here, the testators wishes are clear. Click here to answer our questionnaire on the consultation – be part of our response!