Lack of valid execution

Lack of valid execution of the Will

There are a number of requirements for a Will to be valid as set out in Section 9 of the Wills Act. If the Will does not comply with these, it will be invalid.

These include:

  • The will must be in writing and signed by the testator (the person making the Will), or signed by someone in their presence under their direction.
  • It must appear the testator intended by their signature to give effect to the Will.
  • The testator’s signature must be made or acknowledged in the presence of a minimum of two witnesses who are present at the same time.
  • Each witness must either attest and sign the Will, or must acknowledge the signature in the presence of the testator – although not necessarily in the presence of any other witness.

There is a legal presumption that a Will has been validly executed, unless evidence can be provided to show the contrary.

Lack of valid execution: points to note

The main starting point on valid execution of a Will is Section 9 of the Wills Act which sets out the four requirements listed above. However, there are many other rules regarding the Execution of a Will. Where the requirements are not all met, there is an opportunity to challenge the Will.

NB: We have used the terms ‘Testator’ ‘He’ and ‘Him’ below but these notes apply equally to ‘Testatrix’ ‘She’ and ‘Her’.

Points to note include:

  • The Testator (the person making the Will) does not have to sign at the end. However, there is a general requirement that they must intend their signature to give effect to the Will. If they don’t sign at the end, their intention could be questioned.
  • If the Testator cannot sign personally – so someone else signs at their direction – their direction must be some positive communication whether verbal or non verbal (Barrett v Bem and others [2012]).
  • The Testator can either sign in the presence of the witnesses or can acknowledge their signature in the presence of the witnesses. However, if the Testator signs in front of them, it will be easier for them to remember that he signed, than it will be for them to remember exactly what he said to acknowledge his signature.
  • The Testator and witnesses must be able to see each other when the testator signs or acknowledges his signature. If the Testator acknowledges his signature, the witnesses must be able to see the signature, or must have the opportunity of seeing the signature.
  • The witnesses must sign after the Testator signs or acknowledges their signature.
  • The witnesses must sign below the Testator’s signature – otherwise there is a suggestion that they signed before the Testator.
  • Each witness must sign in the presence of the testator.
  • Although there is no strict requirement for there to be an attestation clause,  evidence by way of affidavit will have to be required for probate – unless the Will does not affect the distribution of the estate (i.e. it would be distributed the same way under the rules of intestacy) (Rule 12, Non-Contentious Probate Rules 1987).
  • If there is an attestation clause which appears to be validly executed, very strong evidence will need to be shown to demonstrate that it was not validly execution (Sherrington v Sherrington [2005]).
  • Although there is no statutory requirement for the date of execution of the Will to be on the face of the document, it should be included to avoid any uncertainty. Absence of the date means that evidence will be required to obtain probate (Rule 14(4), Non-Contentious Probate Rules 1987). The exception to this is where the Will appoints guardians – in this case, a date on the face of the Will is required.
  • Blind people cannot witness a Will.
  • Those who witness a Will ought to be capable of giving credible evidence at a later stage – therefore, those without mental capacity, minors, those with a questionable reputation or those who it may be difficult to trace are not suitable witnesses. Perhaps surprisingly, family members also do not make good witnesses – any evidence they give at a later date may be regarded as biased.
  • Witnesses, a witness’s spouse or civil partner, or a beneficiary whose interest would derive from either of those, cannot be a beneficiary under the Will (Section 15 Wills Act 1837). The Will is still valid but the gift will fail, with a few exceptions – for example, if the Will has two other witnesses who are not beneficiaries (In the Estate of Bravda [1968]) or if the witness is just benefiting in a professional capacity (e.g. they can charge for their services as professional trustee after the Testator dies). Note that the definition of a professional trustee is quite narrow under the Trustee Act 2000 so ideally trustees/executors and their spouses/civil partners should not be witnesses. Some other exceptions apply.
  • A witness who would not have benefited under the Will when they signed but later became a beneficiary will still be able to inherit. This might happen for example if the witness marries or enters into a civil partnership with a beneficiary  (Thorpe v Bestwick (1881) 6 QBD 311).