There are certain formalities which have to be complied with for a Will to be valid. These are set out in section 9 of the Wills Act 1837 and describe the physical process which must be gone through when a Will is executed for it to have what is generally referred to as ‘formal validity.’
Certainly there are other considerations which must be taken into account, such as the Testator’s capacity, but if the provisions of section 9 are not complied with, the Will will not be valid in any case.
For us as solicitors, ideally we would want to be present at the execution of a client’s Will, whether at home or in the office so that we can guide the process and ensure the formalities are complied with. Our presence as witnesses also means that we can provide evidence of this if it’s needed in the future. Since the pandemic though, we are seeing a rise in clients who want to sign their Wills themselves at home. In those situations, we provide a set of detailed instructions to guide them through the process. These instructions set out that the testator (the person making the Will), must sign it in the presence of 2 independent witnesses (who are present together at the same time) and then the witnesses must sign as witnesses in the presence of the testator. We also now provide our clients with a Home Execution Questionnaire which asks clients to answer questions about how the Will was signed to draw their attention to the key elements of this sequence.
The instructions describe a clear process for clients to follow which ensures the Will is valid, however in fact the specific requirements of section 9 are slightly broader in a couple of respects. This article looks at the fact that the wording actually allows a testator to ‘acknowledge’ a previously executed signature in the presence of the witnesses:
“the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time…”
There is no definition in the Act though of ‘acknowledgement,’ and it will be for the Court to determine whether what the testator did was sufficient for the Will to be valid. In a recent case from last year – Cooper v Chapman & Others [2022] – the Court held that a hand gesture towards the Will, without even any verbal acknowledgement, can be sufficient to comply with section 9.
However, it is incredibly risky to leave the question of whether or not your Will is valid to the determination of the Court, and it would have been far preferable for the document to have been signed by the testator in the presence of the witnesses so there is no element of doubt. The Will in Cooper was a homemade document by a testator who had a complicated family background – although acknowledging that there are other issues in this case, so far as the preparation and signing of the Will is concerned, this is absolutely a case in which the testator would have benefitted from having professional advice and guidance. It may have at the best prevented, or at least reduced the need for costly litigation.
Further, although witnesses can be any person who is not a beneficiary of the Will or married to a beneficiary, and preferably over the age of 18, this case also demonstrates the need for witnesses to be aware of the importance of what they are doing, in case they are called on later to give evidence as to how the Will was executed. The witness evidence was crucial in this case and will clearly be given at a time when the testator themselves cannot provide evidence as to how the Will was signed.
One final issue dealt with in the Cooper case is a lost Will – here, one party claimed there was a signed Will but it could not be produced after death. Generally there is a presumption in that scenario that, where the Will was kept at the testator’s home, they destroyed it with the intention to revoke it – unless evidence can be produced to disrupt that.
In Cooper, the Court accepted that the absence of evidence of any change in circumstances for the testator between the making of the Will and his death was enough to rebut the presumption. In that case, this allowed a draft, unsigned copy of the Will to be admitted to Probate.
Although in this particular case, the Court upheld the arguments in favour of the testator’s Will being valid in terms of the signing process, it is likely that further litigation will follow due to the nature of the case. In addition, it is likely to already have been a costly and time consuming process to get the matter to Court. It is clearly preferable to make sure that your Will is properly and clearly executed and that the original document is then kept safe until it is needed. Our clients benefit from expert guidance and instruction concerning the signing of their Wills and we will store their documents after signing to ensure there is no chance of it being lost.
To discuss how we can help you make a Will that meets your particular requirements, please contact Kathryn Caple on 01283 526200 or email kathryn.caple@elselaw.co.uk.