Execution of a Will
| Author | Nasreen Pearce |
| Pages | 25-39 |
Chapter 3
Execution of a Will
3.1 FORMAL REQUIREMENTS
The formal requirements for the making of a will are set out in section 9 of the Wills Act 1837, as substituted by the Administration of Justice Act 1982. Section 9, as amended, provides that:
(1) No will shall be valid unless—
(a) it is in writing and signed by the testator, or by some 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 same time; and
(d) each witness either—
(i) attests and signs the will; or
(ii) acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness),
but no form of attestation shall be necessary.
(2) For the purposes of paragraphs (c) and (d) of subsection (1), in relation to wills made on or after 31 January 2020 and on or before 31 January 2024, ‘presence’ includes presence by means of videoconference or other visual transmission.
Sub-section 2 was added by the Wills Act 1837 (Electronic Communications) (Amendment) (Coronavirus) Order 2020 initially intended to be effective until 2022 and extended to 2024 by the Wills Act 1837 (Electronic Communications) (Amendment) Order 2022 (SI 2022/18), issued on 10 January 2022, to overcome the difficulties of the testator/testatrix and the witnesses being together in one place and at the same time during the pandemic and the restrictions imposed on movement and gathering of people.
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Additionally, save in the case of a privileged will (see para 2.2), a person must be 18 years of age before he/she can make a valid will (Wills Act 1837, as amended by the Family Law Reform Act 1969).
These requirements seem quite clear and simple to follow but it is easy to be careless and to overlook the most basic points or to misunderstand the precise procedure that needs to be followed and for mistakes to be made. It is, therefore, not surprising that in many instances errors have arisen in the execution of a will. Thus, the first and obvious ground for challenging the validity of a will is that it was not duly executed in accordance with the provisions of section 9 of the Wills Act 1837 as amended. It is, therefore, essential to have some knowledge of what the requirements mean and how the courts have interpreted the statutory provisions.
3.2 WILL MUST BE IN WRITING
With the exception of a privileged will (see para 2.2), no will is valid unless it is in writing. No particular form of words is required but the writing, in whatever form, must express the wishes of the testator/testatrix as to the disposition of his/her estate or part of it and appoint an executor. The Interpretation Act 1978 provides that in any Act, unless the contrary intention appears, the word ‘writing’ is to be construed as including ‘typing, printing, lithography, photography and other modes of representing and reproducing words in a visible form and expressions referring to writing are construed accordingly’. A will in shorthand is acceptable, as is a will produced in Braille, but in such a case when the will is lodged for probate it should be accompanied by a transcription by a competent person and verified by a sworn statement (see, further, Chapter 2).
3.3 WILL MUST BE SIGNED BY THE TESTATOR/ TESTATRIX OR BY SOME OTHER PERSON AT HIS/HER DIRECTION
To be valid, the will must be signed by the testator/testatrix or by some other person in the testator’s/testatrix’s presence and at his/her direction. It matters not in what form the signature appears in the will as long as it was intended to represent the testator’s/testatrix’s signature and to give effect to the testamentary disposition, particularly where the testator/testatrix is disabled, for example if he/she is illiterate or blind. In the case of a testator/testatrix who is blind or illiterate, rule 13 of the Non-Contentious Probate Rules 1987 provides that:
Before admitting to proof a will which appears to have been signed by a blind or illiterate testator or by any other person by direction of the testator, or which for
any reason raises doubt as to the testator having had knowledge of the contents of the will at the time of its execution, the district judge shall satisfy himself that the testator had such knowledge
The will may be signed with the testator’s/testatrix’s name. Initials may suffice (see Re Savory’s Goods (1851) 15 Jur 1042), as may a partial signature or mark (see Re Blewitt’s Goods (1880) 5 PD 116) or a thumb print (see Re Finn’s Estate (1935) 105 LJP 36). The words ‘your loving mother’ have been held to represent the name of the testatrix and to suffice as a signature (see Re Cook’s Estate, Murison v Cook [1960] 1 WLR 353). A rubber stamp has been held to be sufficient (see Perrins v Holland and Others [2010] EWCA Civ 840). A mark made by a seal would be sufficient, provided there is proof that the sealing was intended to be the testator’s/testatrix’s signature and not merely used as a sealing process. A signature which was incomplete due to the testator’s/testatrix’s weakness has been accepted (see Chalcraft, Chalcraft v Giles [1948] P 222). Where a testator’s hand was guided in order for him to make his mark, it was held to be sufficient (see Wilson v Beddard (1841) 12 Sim 28, see also Barrett v Bem and Others [2011] EWHC 1247 (Ch), discussed below). Where a wrong name was placed against the mark of the testator but the real name appeared at the beginning of the will, it was held not to invalidate the will (see Re Clarke’s Goods (1858) 1 SW & Tr 22). The signature in whatever form, however, must be in its original form. A photocopied signature will not be acceptable even if it is subsequently acknowledged in the presence of two witnesses who then attest the photocopy. This is because a photocopy of the will with a photocopied signature would not be regarded as a document which is signed by the testator/testatrix (see Lim v Thompson [2009] EWHC 3341 (Ch)).
Section 9(1)(a) of the Wills Act 1837 as amended provides for situations where, due to physical frailty, weakness or disability, a testator/testatrix is unable to sign his/her will by providing that some other person may sign on his/her behalf provided he/she is present when the signature is made and it is done at his/her direction. Much will depend on the condition of the testator/testatrix and the specific facts of the case whether, in the circumstances, the will is considered to be signed by the testator/testatrix or at his/her direction. In Barrett v Bem and Others [2011] EWHC 1247 (Ch), handwriting experts concluded it was unlikely that the deceased signed the will which was the subject matter of the dispute, and on that evidence the grant of probate was revoked. Three weeks after that decision was made, nurses who were at the bedside of the deceased when he signed the will stated that the deceased had the pen in his hand when he signed the will, but that his daughter A and A’s daughter were present and held his hand to stop it shaking. It was held that in the ‘peculiar, some might say extraordinary circumstances’ in this case, the deceased knew and approved the will and validly directed A to sign it on his behalf. Although A was the main beneficiary under the will, it was also held that in the circumstances of the case it did not offend the
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provisions of section 15 which makes a gift to an attesting witness ‘utterly null and void’, as this provision did not apply to a beneficiary who merely signed a will on the testator’s/testatrix’s behalf at his/her direction. However, in such circumstances the court would have to be satisfied that the will represented the true wishes and intentions of the deceased (see Barry v Butlin (1838) 2 Moo PCC 480). In a case where the will is signed by a person other than the testator/testatrix but at his/her direction, that person must sign either the testator’s/testatrix’s name or his/her name for the purpose of giving effect to such direction, and the attestation clause must indicate that the will was signed by the other person in his/her own name or that of the testator/testatrix by his/her direction and in the presence of the testator/testatrix. It should also confirm that the will was read by or read over to the testator/testatrix and was understood by him/her and approved by him/her. The validity of the will may, therefore, be challenged where there are grounds for believing that these requirements were not followed.
3.4 POSITION OF THE SIGNATURE
Although it is usual for the testator/testatrix to place his/her signature at the foot of a will, it does not invalidate a will if the signature appears elsewhere than at the end or foot of the document because section 9 of the Wills Act 1837, as amended by section 17 of the Administration of Justice Act 1982, does not stipulate where the...
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