A recent case in the High Court has considered the formalities for a valid will under the Wills Act 1837.
In this case, the testator had written on the back of a frozen fish box expressing his wish for his house and its contents to go to the British Diabetic Association. The testator wrote his remaining testamentary wishes on a separate piece of cardboard originating from a Mr Kiplings’ mince pies box. The second ‘page’ was signed and witnessed by the testator’s neighbours.
The testator died, and the British Diabetic Association wanted to admit the pieces of cardboard to probate as the last will of the deceased. The question the Court had to consider was whether the two pieces of disconnected cardboard could form one, valid will.
If the Will was deemed valid by the Court, the entirety of the testator’s estate – worth around £180,000 – would go to the diabetes charity. If the Will was found to be invalid, the testator would be deemed to have died intestate, and his estate would be distributed according to the intestacy rules. This would have the effect of his estate being inherited by some of the testator’s family members, with whom he did not get along.
The formalities of a valid Will
Section 9 of the Wills Act 1837 sets out the formalities which must be followed to create a valid will. These formalities are as follows:
- The will must be in writing and signed by the testator (or by some other person in his presence and by his direction);
- It must appear that the testator intended by his signature to give effect to the will;
- The signature must be made or acknowledged by the testator in the presence of two or more witnesses present at the same time;
- Each witness must either –
- Attest and sign the will; or
- Acknowledge his signature in the presence of the testator.
Whilst in 1837 it was likely envisaged that such wills would be written on paper, this is not stipulated by the statute, which has led to some liberal interpretation. In the 1926 case of Hodson v Barnes the Court had to consider whether an ostrich eggshell bearing the message “17-1925. Mag. Everything I possess” met the requirement for “writing” in the Act. The Court held in this case that the eggshell did meet the formalities of the Wills Act and the Act did not prevent a Will from being written on an egg, however unconventional this may seem.
The principle has therefore been established that whilst a will must be in writing, this need not be on paper.
The issue of disconnected cardboard
In the present case, the issue therefore was not that the writing was on cardboard, but that the writing was spread over two, detached pieces of cardboard. Furthermore, whilst the second page was signed and witnessed, the witnesses testified that they did not see the first piece of cardboard when signing the second. It was therefore questioned how the two pieces of cardboard could form one single document when they were capable of being read separately.
However, despite the disconnection of the two pieces of cardboard, the Court ruled that the testator had treated the two pieces as a whole: the evidence showed that he had used the same pen to write on both boxes, suggesting they had been written at the same time. Furthermore, it was held that the testator had clearly intended to treat the two pieces of cardboard as his Will; this being how he described the cardboard to the witnesses. Accordingly, the Court ruled that the Will was valid.
In doing so, the Court considered that if it were to rule that the Will was invalid, this would frustrate the testator’s intentions: the evidence showed that he did not want his estate to be inherited by his family members, and instead wanted the British Diabetic Association – a charity close to his heart – to benefit from his estate. The two pieces of cardboard were therefore admitted in solemn form to the Probate Registry as the last will of the deceased.
Whilst this case demonstrates that the law provides some flexibility to admit unconventional, homemade wills, the formalities of the Wills Act must be followed to create a valid will. It is therefore prudent to seek legal advice when creating a will to ensure that these formalities are met. If there is any room for doubt, this could create a costly legal dilemma requiring the Court’s input to resolve.
If you would like to make a will or are involved in a dispute regarding a will which may not be valid, please do not hesitate to contact us and one of our specialist legal advisors would be happy to assist. You can contact us by phone on: 0345 450 5558 or by email: enquiries@stephens-scown.co.uk