Executing a Will

Section 9 of the Wills Act 1837 sets out the formal validity requirements which must be followed in order for a valid Will to be made. They include the need for the Testator to sign the Will in the presence of two Witnesses, present at the same time, and for the Witnesses to then sign the Will themselves. 

Contentious Probate cases concerning the requirements of Section 9 are few and far between. That is because it is usually quite a black and white situation, either they have been complied with or they haven’t.   

Even if the dispute escalates to the extent of reaching a Trial, the Courts are generally reluctant to set aside a Will on the basis of the formal validity requirements where they believe it to reflect the Testator’s true intentions. A prime example of that is the recent case of Marley v Rawlings (2014) where a Husband and Wife accidentally signed each other’s Wills. Whilst that was clearly a breach of the Section 9 requirements, ultimately the Court found a way to declare the Wills valid as they were satisfied that they reflected the couple’s true wishes.

I have recently come across a case where Solicitors prepared a draft Will, allowed a child of the Testator to collect the document and take it away for it to be executed. Only on investigation does it transpire that when the two Witnesses attended the Testator to witness the execution of the Will, the Testator was asleep, the Will had already been signed (purportedly by the Testator) and that whilst the Witnesses duly signed the Will, they did not actually witness the Testator sign it.

On the face of it, therefore, this appears to be an obvious failure to comply with the Section 9 requirements and the Will should therefore be held invalid.

It does, though, raise the question of whether the Solicitors had offered to deal with or oversee the execution of the Will, or had provided detailed instructions on how it was to be executed. Accordingly, there may well be elements of professional negligence on the Solicitors part if they did not act or advise sufficiently. 

Whilst the requirements set out in Section 9 of the Wills Act 1837 are not particularly complicated or onerous, unless you are aware of them, it is quite easy to fall foul of the rules and unfortunately it is only after the Testator dies that the errors are discovered and by that point it is too late.  

If you have been affected by issues similar to those mentioned above, or wish to challenge the validity of a Will, please contact our Contentious Probate Team on 01271 349960. We handle a variety of disputes surrounding Deceaseds’ Estates, including bringing and defending validity challenges and are able to offer high quality, cost-effective legal advice on such matters.