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12th April 2019

Will formalities explained

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Of the various grounds to contest the validity of a Will, the one that is perhaps the most straightforward to establish evidentially, is whether or not the Will itself has been validly executed. There are certain Will formalities laid out in S.9 of the Wills Act 1837 that need to have been complied with, for a Will to be deemed correctly executed. Failure to adhere to these requirements will render the Will invalid, which will result in the Deceased’s last wishes not being followed and potentially costly and lengthy litigation, with could have otherwise been avoided.

Below, we have summarised the legal requirements for a Will to be validly signed and witnessed. For the purposes of clarity, we have used the legal term ‘testator’ to refer to the person who made the Will in question.

1. The testator must have attained the age of 18

2. The Will must be in writing

There is no distinction drawn between typed and handwritten Wills. However, if a Will is handwritten in a combination of pencil and ink, it runs the risk of being contested on the presumption that the words written in pencil were not intended to be part of the final Will.

3. The Will must be signed by the testator

Any mark made by the testator is sufficient. If the testator is however physically incapable of signing, they may instruct another to do so on their behalf at their direction.

4. The testator must have intended by their signature to give effect to their Will

In short, the testator must have been aware that they were executing their Will and not any other document.

5. The testator must sign in the presence of two independent witnesses present at the same time

The testators signature must be witnessed by two witnesses, who need to have been physically present at the same time to witness the testator sign their Will.

The witnesses are then required to sign and attest the Will, or acknowledge their signature, in the physical presence of the testator but not necessarily in the presence of each other.

Witnesses must be over 18 years old and not blind. You should ensure that a witness is also not a named beneficiary of the Will in question, or the spouse of any named beneficiary under the Will, since otherwise the gift under the Will to the beneficiary will fail.

If someone has died and you have reason to believe that the Deceased’s Will was not correctly executed in accordance with the above formalities listed, please contact Hewitsons today for a free initial consultation, to discuss whether you may be able to bring a claim. Hewitsons are specialists in Will disputes and ranked by directory, The Legal 500 as a Top Tier law firm.