Challenging a Will: Valid Execution
We receive many enquires relating to claims about Wills, for example, concerns as to whether a testator had capacity to make a Will, inheritance claims and claims where a person is concerned that the testator may have been subjected to undue influence. However, before considering these claims, it is important to establish whether the Will in question has been properly executed.
Except in very limited circumstances (relating to military service), the requirements for the valid execution of a Will are as follows:
- A person making a Will (the testator) must be 18 or over;
- It must be in writing;
- The Will must be signed by the testator or some other person in his presence and at the testator’s direction;
- The testator must intend for his signature to give effect to the Will;
- The testator’s signature must be made or acknowledged by the testator in the presence of two or more witnesses; and
- Each witness must sign the Will or acknowledge their signature in the presence of the testator.
There is no requirement for the Will to be dated. However, this is advisable in order to demonstrate the last Will of the testator.
The requirements for valid execution of a Will arise from the Wills Act 1837. Over the years case law has elaborated on how those requirements may be met. For example, an inky thumb print, initials and a mark made by a rubber stamp with the testator’s initials have all been held to suffice as a testator’s signature.
The witnesses chosen are also important. A Will cannot make a valid gift to a witness, a witness’s spouse or civil partner, or a beneficiary whose interest derives from either the witness or the witnesses’ spouse. It is important to note that the Will is not affected by this, only the gift. There are, however, some rare occasions when a witness can benefit from a Will.
It is important to preserve the physical condition of the Will. For example, if there is a paperclip mark on the Will, it may suggest that another document was attached to it, or if the Will is torn, it may lead to questions as to whether the testator intended to revoke the Will.
In summary, therefore, it important to ensure that the Will has been validly executed. If it has not, then it will not be valid and the testator’s estate will be distributed according to any previous Wills or on the basis of intestacy (when there is no valid Will).
If you wish to discuss any of the issues arising from this blog, please feel free to contact me at victoria.riddleston@ellisjones.co.uk or 01202 057768
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