With the age of austerity continuing, and the ability to buy a ‘make your own Will’ kit from large high street stores for a fraction of the price of visiting a solicitor, there may be a rise in claims about whether a Will has been properly executed. The results can be extreme – if the Will has not been properly executed, then it will be invalid and will not be admitted to probate. This could mean that people who the testator wanted to benefit are left out in favour of those who inherit under the rules of intestacy.
The requirements for making a Will are firstly that the testator must be aged over 18, or of privileged status.
Privileged status is set out in s11 Wills Act 1837, and includes soldiers in active service and sailors at sea. In order to make a privileged Will, the testator must show an intention to make a Will, but does not have to observe the other formalities (such as putting it in writing) so there have been cases where oral privileged Wills have been proven.
Section 9 of the Wills Act 1837 sets out the other formalities which must be observed when making a Will:
- The Will must be in writing.
- The Will must be signed by the testator – but anything which he intended to be a signature will count. In previous cases, this has included an inky thumbprint, or the testator’s initials. In this day and age, where there are very high levels of literacy and pens and paper are in ready supply, it is unlikely that the Court will accept anything less than a proper signature. Another person can sign on behalf of the testator, so long as the testator is present (both physically and mentally) and it is done at his direction. This may cover situations where the testator is close to death and so unable to physically hold the pen.
- The testator must intend by his signature to give effect to his Will – so if the testator signs on the basis that it is not effective until some condition is satisfied (such as that it only comes into effect on his 80th birthday), then it will not be valid
- The Will must be witnessed by two people, who must see the testator signing the Will. They do not have to know what they are signing, or to see the remainder of the document, but they have to see the testator signing. It is not unusual in my experience to find that the testator has not got the witnesses together, but has been to them one after another. That will make the Will invalid because at least one of them will not have seen him sign the Will.
If the requirements for signature have not been clearly set out in written advice from a solicitor or will writer (if one was used) and/or the solicitor has not offered to make arrangements for the Will to be properly signed and witnessed, the you may be able to bring a professional negligence claim against that solicitor.
- Once the testator has signed, the witnesses must afterwards sign or acknowledge in the presence of the testator.
In most Wills there will be an attestation clause setting out the fact that the Will has been properly signed and witnessed. This will give rise to a presumption that the Will has been properly executed, and if you want to challenge that you will ahve to have very strong evidence – such as statements from the witnesses to say that they were not present together at the time of signing. It is not an easy thing to prove.