Challenging a Will for lack of due execution

In order for a Will to be valid, a will must be executed in accordance with section 9 of the Wills Act 1837.

The act provides that the Will is only valid if:

1. it is in writing, and signed by the testator, or by some other person in his presence and by his direction; and
2. it appears that the testator intended by his signature to give effect to the will; and
3. the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
4. each witness either — a) attests and signs the will; or b) acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness).

The order of the signatures

The testator must make a signature in the presence of the two witnesses so that the witnesses are in a position that they can see this signature being made. Each witness then must sign their parts in the presence of the testator, but this does not necessarily need to be in the presence of any other witnesses. 

A Will can be typed or handwritten, and it may be in the handwriting of the testator or any other person. The writing can be in ink or pencil. It is important to note that if the Will is written in a combination of ink and pencil, then the parts in pencil will be excluded from probate unless there is evidence that the testator intended these parts to be final.

A testator does not have to sign his name at the end of the will but things such as an inky thumbprint, initials and a mark made by a rubber stamp with the testators initials have been found to be an acceptable signature in previous cases. 

The act does not require a Will to be dated however, this is preferable as it avoids uncertainty as to whether this was the last Will of the testator.

Complicated situations

Another person can sign on the testator’s behalf, but only if the signature is made in the testator’s presence and by their direction. The testator must be mentally and physically present at the time when the signature is made.

A gift in a Will is void if a beneficiary is a witness to the Will, but this does not extend to a person signing at the direction of the testator and does not prevent the gift from taking effect. 

If a testator is blind or visually impaired and cannot read the will, they must have had the will read over to them in the presence of the witnesses. This will show that they have knowledge of the contents.

If the testator is unable to or cannot read the will, then this would need to be read to the testator in the presence of the witnesses. 

If a testator day cannot sign the Will, then they can make a mark instead. If they cannot make a mark at all then someone else can be directed to sign on their behalf.

If the Will is written in English and the testator does not understand English, they Will should be interpreted in their native language and read to the testator firstly in English and secondly in the native language by an interpreter. The interpreter then would act as one of the witnesses.

Virtual witnessing 

In 2020 at the beginning of the first lockdown, there were different views as to whether presence in the act could be construed as extending to virtual presence. The act was amended to include presence by means of video conference or other visual transmission. This amendment however was only valid until 31st January 2024. 

The witnesses still must witness the Will being signed in real time. Pre-recorded videos were not permitted.

Attestation clause in a Will

An attestation clause is a clause in a Will which explains that the circumstances in which the Will was signed and witnessed was in accordance with the act. This clause normally raises a rebuttable presumption of due execution, but this clause is not required.

If a grant of probate has not yet been issued and you have concerns regarding the execution of the Will, you may wish to enter a caveat. This will prevent the grant of probate from being obtained and allow you time to investigate the matter.

How can Pinney Talfourd help

If you have concerns regarding the validity of a Will, you should obtain legal advice from a contentious probate solicitor to discuss your options before entering a caveat straight away.

To speak with one of our contentious probate solicitors, please call 01708 229 444 (Upminster Office) or 01277 211 755 (Brentwood Office).