Requirements for Valid Execution
| Author | Lesley King/Peter Gausden |
| Pages | 39-53 |
Execution
4.1 Introduction
The execution of a will is usually very easy to get right. However, things can be dealt with in such a way that even though the will may turn out to have been validly executed, difficulties arise after the testator’s death in proving that it meets the necessary requirements. This not only leads to additional costs and time taken before a grant is issued, but also inevitably increases the anxiety levels of those whose expectations are dependent on the outcome.
Those involved in the preparation of a will need to know what to do to ensure a will is executed in such a way that difficulties will not arise when the will is the subject of an application for a grant. Equally, they must be able to look at a will which they did not prepare and give a view on whether its admissibility to probate might be called into question, either by the probate registrar or someone who might seek to challenge the will’s validity. Often, the appearance of a will may raise doubts as to whether it has been executed correctly, in which case it is necessary to know what further investigations need to be undertaken to establish its validity.
4.2 A simple recipe for getting it right
The formalities for executing a will are set out in section 9 of the WA 1837 (as amended by section 17 of the AJA 1982), and this is considered in detail at paras 4.3 to 4.3.10. With the exception of a privileged will (see para 4.7.1) or a statutory will made by the court under powers in the MCA 2005 (see para 4.7.2), any will which does not comply with these requirements will be invalid and so cannot be admitted to probate.
However, assuming the testator is able and willing to read the will and give effect to it with his own signature and the will is in a conventional format with a standard attestation clause (see para 4.3.9), a valid execution can be achieved by following these steps:
(a) the testator and two suitable witnesses (see para 4.3.7) must remain together (that is in the same room) and attentive throughout the process, so as to comply with the statutory requirement of ‘presence’;
40 Wills: A Practical Guide
(b) the two witnesses both watch the testator date and sign the will;
(c) each witness in turn then signs the will, watched by the testator and each other.
Following these steps complies with the statutory procedure and no further evidence should be needed beyond the will itself to show it has been validly executed. In fact, ensuring that the witnesses see each other sign, having already seen the testator sign, goes a little beyond the statutory requirements for the sake of further evidential proof should anyone decide to dispute what actually took place.
As will become apparent below, not all executions can follow these simple steps and there may be some additional requirements. Also, having regard to the provisions of section 9 of the WA 1837, particularly since it was amended by section 17 of the AJA 1982, an execution might still be valid despite the above sequence of events not being strictly followed, although such cases invariably require proof of certain facts by those seeking to establish the will’s validity.
4.3 Formalities in section 9 of the Wills Act 1837
Section 9 of the WA 1837 (as amended by section 17 of the AJA 1982) provides as follows:
No will shall be 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 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.
Particular elements of these requirements require further explanation since each has been the subject of much litigation in the past.
4.3.1 ‘… in writing’
There are no restrictions about the materials on which, or by which, a will may be written or as to the language used; nor is any particular form of words necessary. Schedule 1 to the Interpretation Act 1978 provides that, if any statute uses the word ‘writing’, that word is construed as including ‘typing, printing, lithography, photography and other modes of representing or reproducing words in a visible form’. So, a will in shorthand or in Braille is acceptable, as is a will written in code as long as it is decipherable using extrinsic evidence.
The writing, even handwriting, need not be the testator’s own and the writing need not be in the testator’s native language. However, wills written in anything other than English (or Welsh, where appropriate) are best discouraged by the professional draftsman. Not only will a non-English will make the grant and administration process more difficult, but also there may be construction and interpretation issues because while English words and phrases may have accepted meanings when used in a will, the meaning of non-English words may be lost in translation, perhaps to the point where there is no exact equivalent in probate and succession law.
Some people today may be tempted to put their will into an electronic format, for example, storing on computer or even making a ‘home movie’ by sitting in front of a digital imaging device and reciting their testamentary wishes. This sort of refinement is perfectly in order as long as the ‘will’ is supported by a formal written will made in accordance with the usual statutory formalities. In other words, electronic formatting of a will is not by itself, at least not yet, acceptable as ‘writing’.
Common sense dictates the use of paper but wills have been validly made on various substances, including a wall and even an eggshell. Similarly, the substance used to put words on the page has no limitation. If written partly in ink and partly in pencil, there is a presumption that the pencil writing was deliberative only; the words written in pencil will not be admitted to probate unless there is evidence proving that the testator intended them to be final. If the will is entirely written in pencil, or any other non-permanent substance such as chalk, then the will as a whole is valid, but obviously the use of such materials is never advisable and should not be used in practice unless no better writing materials are available.
Professionally made wills are now produced on a computer or similar device. Likewise, homemade wills may be made using the same technology but may otherwise be handwritten, or made using a commercial form containing standard printed clauses with blank sections which are either completed in manuscript or typed in.
42 Wills: A Practical Guide
The writing may extend to more than one page. There is no rule to say pages must be physically attached, although they must all be present together when the will is executed. However, unless the pages are physically joined, or it is obvious from the context that each page follows on from the previous one, the probate registry will call for further evidence to verify all pages are present and are to be read together.
4.3.2 ‘… signed by the testator’
Normally, the testator signs the will, preferably with his usual signature. The signature does not have to be the testator’s full name and the use of initials alone has been accepted. Using a signature which is not the testator’s real name is also valid if it can be verified the signature is in fact that of the testator by comparing it to his signature on other documents. Ideally, and to avoid any issues arising, the signature should be consistent with the way the testator is described in the will.
Various alternatives to a normal signature have been held as acceptable as a signature including:
(a) the testator’s mark, such as using a cross;
(b) the testator’s thumbprint;
(c) the use of a rubber stamp;
(d) the use of a word that can identify the testator, such as ‘Mum’.
In other words, virtually anything written or impressed on the will and intended to be a signature can be effective. A good illustration of this point is In the Goods of Chalcraft...
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