For a Will to be valid, the proper formalities set out in section 9 of the Will Act 1837 must be strictly complied with. Failure to do so can expose a testator’s Will to challenge and lead to expensive and time-consuming disputes. A valid Will must adhere to all of the following formalities:
- It must be in writing. The handwriting of either the testator or another person is acceptable. A combination of writing in ink and pencil raises a rebuttable presumption that the testator did not intend the words in pencil to be final.
- It must be signed by the testator who has attained the age of 18 (or another person in his presence at this direction). It is preferable for a testator to sign with their usual signature to avoid uncertainty however anything which he intended to be a signature will suffice. It is possible for another person to sign for the testator provided it is in the testator’s mental and physical presence and by his direction; for example, this may be necessary where a testator is too weak to sign unaided.
- The testator must have intended to give effect to his will by his signature. A lack of intention will invalidate a Will. The case of Marley v Rawlings highlights the importance of taking care with this requirement; Wills made by a husband and wife were held to be invalid as they had accidentally signed each other’s Will, albeit in identical terms. For further information, please see our Briefing Note: Strict approach to the rectification of wills: Marley v Rawlings & Anor .
- The signature must be made or acknowledged in the presence of at least two witnesses present at the same time. Witnesses are considered ‘present’ if they can see the testator writing his signature and are mentally and physically present. Witnesses should be at least 18 years old and be able to give reliable evidence if required to in the future. Witnesses should not be anyone who is a beneficiary under the Will or married to or in a Civil Partnership with any beneficiary under the Will.
In circumstances where the validity of a Will is challenged, evidence may be required to show that the testator had knowledge of and approved the contents of the Will. Witnesses should therefore take steps to satisfy themselves of this by requiring the testator to read the Will immediately before signing it, or conducting an explanation or discussion as to its content in the presence of the witnesses. The recent case of Re Wilson (deceased); Turner v Phythian  EWHC 499 draws attention to this requirement particularly where a Will is prepared by a beneficiary. In such circumstances, the court requires affirmative evidence of the testator’s knowledge and approval of the contents of the Will. For further information, please see our Briefing Note: Why an Independent Solicitor is valuable when faced with a Will challenge.
- Each witness must attest and sign the Will, or acknowledge his signature, in the presence of the testator. The position of the signature is immaterial but it must be placed on the Will in the presence of the testator who is mentally and physically in a position to see the witnesses signing.
If you are considering putting in place a Will, please contact one of the members of the Private Client team. If you discover a defect in a Will, you should seek the advice of a solicitor as soon as possible. If you would like further information, please contact Robert Macro, Head of Druces LLP’s Private Client team.This note does not constitute legal advice but is intended as general guidance only. It is based on the law in force in November 2013.