Jack and Jill went to see their solicitor, Tom. They told Tom that sadly, their father, Peter, had passed away. They presented Tom with their father’s Will, which they had found in his sock drawer. In his Will, Peter left everything to his wife, but if she should predecease him (which she had) then instead, everything would go to Jack and Jill but nothing to his other son John.
Tom asked Jack and Jill why Peter had left John out of his Will. They explained that, unfortunately, John was a deeply unpleasant person who had caused nothing but trouble to their parents. Their father had decided that John was simply not worthy of inheriting anything. In any case, John was in jail and they understood from a friend in the local pub that people in jail could not inherit anything.
Tom looked at the Will. It was homemade, using a standard form obtainable from the Post Office. Peter had appointed his wife and Jack and Jill as Executors; as Jack and Jill had said, he left everything to his wife but if his wife predeceased him then to Jack and Jill in equal shares. Peter had added a note saying that he did not wish to leave anything to John given John’s behaviour towards Peter and his wife. Peter had signed the Will but there was only one witness.
Tom gently pointed out to Jack and Jill that the Will was not valid. The law requires two witnesses for a valid Will, and it was not just that there should be two witnesses but they had to have been present at the same time that Peter signed the Will, and seen (or be able to have seen) him do so.
Not surprisingly, Jack and Jill were extremely disappointed; in fact, they were beside themselves with fury. Tom asked if Peter had made a Will previously, and Jack and Jill said that indeed he had when the children were very young. That Will was similar, everything to his wife; but if she did not survive then equally between all of his children. Helpfully, Jack and Jill had brought that Will along as well; it had been in the same sock drawer. Tom looked at this Will, Peter had indeed signed it, and this time there were two witnesses. Tom explained that there is a presumption that where there is an ‘attestation clause’ (which states that the Will was signed by the Testator in the presence of the witnesses and they signed it in his presence) it is assumed that it was validly signed. It would appear that the earlier Will was still valid, not having been revoked by the incorrectly executed later Will.
Jack and Jill said that it did not matter anyway, because John cannot inherit as he is in jail. Tom looked at the Death Certificate. Peter had died of lung cancer. John, having been in jail for the past 20 years, it could not be said that he had killed his father. Tom explained that simply being in jail did not prevent a person from inheriting; if that person had murdered the Testator, then his inheritance would be forfeit but that was not the case here. Assuming the earlier Will was valid, Peter’s estate, which was valued at many millions, would be divided equally between Jack, Jill and the jailed John.
Jack and Jill said that their father was never particularly concerned with formalities. The later Will clearly represented his last wishes. Surely, if they went to Court, the Judge would uphold the later Will? Tom had to explain that that was not the case. Under English Law, unless the Will is properly executed, it is simply not valid. Certain other jurisdictions around the world in some cases allowed improperly executed Wills to be valid if the deceased had complied with most of the requirements and it was clear that it did indeed represent his last wishes but that is not the case in England. Under English Law, John could insist on receiving his one third share of the substantial Estate. It would appear that Peter had not read the instructions that came with the Will form carefully enough; the error was his own. Unless John wished to give up his share of the Estate (perhaps by Deed of Variation) there was not much that Jack and Jill could do.
This cautionary tale (fictional in this case, but one can imagine it happening) shows how difficult it can be to comply with legal requirements and why professional advice should be obtained, even for what are apparently simply matters.
Section 9 of the Wills Act 1837 (don’t worry, although the Act itself is old, it has since been updated) says that no Will shall be valid unless it is in writing; signed by the Testator (or by some other person in his presence and by his direction); it appears that the Testator intended by his signature to give effect to the Will; the Testator’s signature is made or acknowledged by the Testator in the presence of two or more witnesses present at the same time; and each witness attests and signs the Will (or acknowledges his signature) in the presence of the Testator (but not necessarily in the presence of any other witness). No form of attestation is necessary but it is good practice to include one.
As you can see, two witnesses are required, present at the same time that the Testator signs. Who can these witnesses be? I can tell you who they should not be:
Curiously, perhaps, an executor named in the Will can be a witness (as long as he or she is not excluded as above). Even children can be witnesses as long as they have the competence to give evidence and understand what they are doing, so again it is best practice to have adult witnesses. Indeed, a witness, by signing the Will, is confirming that he witnessed the Testator signing his name or acknowledging his signature, rather than merely seen that person writing. If the Testator simply shoves the document under the witness’s nose and says “sign here”, without explaining that the witness is witnessing his signature, then the witness is not attesting to the Will and it may not be valid. However, the witness does not need to know that the document is in fact a Will.
Most people, of course, sign their name as if signing a cheque (which is pretty much out of fashion now). In fact you can use any mark which is intended to be your signature. Block capitals are sufficient, as long as that is your signature and that is what you intend. A mark is sufficient, such as a cross; so is a thumb print.
The Testator him or herself may not be in a position to sign, perhaps through physical disability, and a person may instead sign for them at their direction and in their presence. It is even possible for someone to guide the Testator’s hand. The direction for someone else to sign must come from the Testator; passive acquiescence is not sufficient. Another curiosity: a person signing on the Testator’s direction may be one of the witnesses.
In this case it is usual for a specific attestation clause to be included in the Will, to the effect that the Will has been read over to the Testator, that he or she understands it, and that unless the Testator can sign or make a mark him or herself, then the signature is by his or her direction.
I mentioned above that an attestation clause is not required by the legislation. That is true, but if there is no attestation clause, then when the Will comes to be proved at the Probate Registry, the Executors will be asked to provide an affidavit setting out the circumstances in which the Will was signed.
It is essential that the witnesses see the Testator sign the Will or had the opportunity to see it. It is not a good idea to ask one of the witnesses to go to the kitchen to make a cup of tea whilst the Testator is signing the Will. If the witness could not have seen the Testator sign, the Will is not valid.
I always try to supervise my clients when they sign their Wills; I am often a witness along with one of my colleagues. I keep a record on my file of the circumstances of the signing. In this way, the validity of the execution can be proved, if necessary, after the Testator’s death.
So if you want to make a Will, see a solicitor; it least it will be signed correctly. As for the contents of the Will, that is entirely another story…
To discuss matters relating to Wills please contact Associate Solicitor, Anthony Kalp or another member of our Private Client Team on 01892 526344 or email enquiries@berryandlamberts.co.uk
The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.
