In order for a Will to be valid it must be signed by the testator and witnessed by 2 independent people as per section 9 of the Wills Act 1837. There are 3 specific criteria that need to be met (well 4 really but point 3 and 4 are wrapped up together for the purposes of this blog)
- IT IS IN WRITING AND SIGNED BY THE TESTATOR (or by some other person in his presence and by his direction)
The will must be in writing, whether this is handwritten or typed. (Interestingly, there is no requirement for the will to be written on paper; as long as this can be produced to the Probate Registry this will meet the requirements – although for obvious reasons paper is recommended!)
The will must be signed by the testator using their normal signature. However, what constitutes a signature has been interpreted fairly liberally by the Courts and the following has been accepted in the past – a mark of any shape, a rubber stamp, inked thumb print (as long as the witnesses can attest to the fact that the mark was made by the testator)
Where the testator is unable to sign the will, a simple mark is sufficient to validate the Will as long as it is intended to be their signature and that mark is meant to execute the will. There may be other circumstances where the testator is blind, illiterate or paralysed which will affect their ability to sign the Will. In this case, the will can be signed on the testator’s behalf and a special attestation clause must be used.
- IT APPEARS THAT THE TESTATOR INTENDED BY HIS SIGNATURE TO GIVE EFFECT TO THE WILL.
This one is quite simple, by witnessing the signing of the will by the testator they are giving evidence of their intention.
- TWO OR MORE WITNESSES PRESENT AT THE TIME OF SIGNING & EACH WITNESS EITHER:
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).
A witness is a person who signs the Will to verify the signature of the testator. The witnesses sign to confirm that they have observed the testator while he signed his Will (although the witnesses do not need to know that the document is a Will or sign in the presence of one another).
Both witnesses must be present at the same time and must not leave before the testator has completed his signature.
The rules on who can be a witness are as follows:
- A witness must not be a beneficiary or the spouse or partner of a beneficiary. It is also sensible not to have an executor as a witness.
- A blind person is unable to witness a “visible act” such as the signing of a Will.
- A witness must be physically present
- A witness must be mentally present (they cannot be asleep, unconscious, under the influence of drink or drugs, or otherwise lacking in mental capacity)
- There is no minimum age requirement to be a witness, but the witness must be aware and competent enough to give evidence, so it is advisable to choose witnesses who are over 18.
- From a practical perspective, it is also sensible to choose witnesses who are younger than the testator and likely to survive them as they may be required to give evidence after the testator’s death.
- It is also practical to avoid using a witness from another country since it could cause issues with location and communication
So while it is possible to create a Will yourself ,there are plenty of pitfalls to ensuring that your Will is valid – that’s why it is always advisable to use a professional when writing your Will.
If you want to talk about writing your Will or you have an existing Will you’d like to review or change please get in contact for a free, no obligaiton chat on 0115 878 0417 or email me on amanda@alhlegal-willwriters.co.uk
