There are five grounds on which you can dispute the validity of a Will. These grounds are listed in our article ‘Challenging the validity of a Will’. In this article we focus on the first ground known as ‘lack of proper formality’.
Claims made on the ground of ‘lack of proper formality’ usually arise where the Will has not been correctly executed. Homemade Wills often give rise to this type of claim.
What constitutes a valid Will?
For a Will to be validly executed it must comply with the terms of s.9 of the Wills Act 1837. This requires the Will to be:
- Made in writing and signed by the testator (the person making the Will) or by someone at their direction;
- The signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and,
- Each witness either attest and signs the will or acknowledges his signature in the presence of the testator.
What does that mean in practice?
Firstly, the Will must be written down, although there are no requirements on what material. A Will written on an egg shell has been permitted (unless it was an ostrich egg, I have no idea how they managed to fit the testator’s wishes and three signatures on, but they did).
Once written down, it must be signed by the testator or by someone else at their direction. A mark or initials is sufficient, as is a stamped signature or seal.
If the testator has not signed the Will in the presence of witnesses, he or she can acknowledge their signature in the presence of two witnesses who can each sign. The two witnesses should ideally be present at the same time when the testator signs or acknowledges his/her signature although if they are not, the testator and first witness will need to acknowledge their signatures in the presence of the second witness. This is what happened in one of the rare reported cases on execution: the testator took his already signed Will round to a married couple. The wife signed but in the absence of her husband. When the husband returned, the testator acknowledged his signature and he then signed under his wife, who continued to remonstrate. By continuing to express doubts about the validity of what was done, she too acknowledged her signature. The Will was upheld.
If the strict rigours of section 9 are not adhered to, the Will is not valid. Issues can also arise if a beneficiary under the Will also witnesses it: the gift to them will fail.
And the future?
The rigours of section 9 are designed to prevent frauds being perpetrated on the testator’s estate and have been very successful.
Challenges on the basis of a lack of proper formality have been rare until now, but could increase in the future as a result of Coronavirus. But the section was drafted before the ready availability of electricity in the domestic setting, let alone telephones, computers and the internet.
The exacting requirements of due execution are not easy when in lockdown with stringent social distancing rules to follow. How could a Will be signed in front of two witnesses from outside of the testator’s household or bubble? There has been lively debate about whether Wills witnessed over Zoom or Skype meet the requirements. The Law Society thinks not. More confident practitioners believe so and have put their money where their mouth is.
The Ministry of Justice have recently issued interim guidance on what constitutes a valid Will during the pandemic which now allows Wills to be witnessed through video conferencing provided strict requirements are met. For further information please see our article regarding this guidance.