Signing a will – what’s involved?

There has been a case recently that called into closer scrutiny the process of signing a will – looking at what is required both from the testator (the person making the will) and from their witnesses. The legal requirements are not necessarily complicated but aren’t explained that clearly in the Wills Act of 1983.

How important is a ‘signature’ when you ‘sign-up’ to an agreement? This was the question at the heart of a recent case over conflicting versions of a will. Section 9 of the Wills Act states: ‘No will shall be valid unless the testator’s signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time. Each witness must then attest and sign the will in the presence of the testator.’

The recently highlighted case was one where the testator made two wills, the earlier will favoured a second wife and the later favoured children from the first marriage. On both wills the testator had written (rather than signed) his name in the space reserved for his signature and the witnesses had printed their names and addresses but had not added what would commonly be recognised as a signature.

The trial judge found that neither will was valid, as merely filling in the names of the witnesses and the testator did not amount to a ‘signing’ process. The witnesses of the later will were found to be unreliable and no attempt had been made to contact the witnesses who signed the earlier will.  The judge then refused to allow belated evidence from the witnesses of the earlier will.

On appeal, the court looked carefully at the wording of Section 9 and reviewed the wording of the original version of 1837. This version required witnesses to ‘attest and subscribe’.  When Section 9 was updated, the word ‘subscribed’ was replaced by ‘sign’; not to change the meaning but simply to adopt a more modern term.

The court held that the requirement to ‘sign’ the will did not in fact mean that a ‘signature’ was needed. It is sufficient for witnesses to simply write their name. The court also found that the trial judge was wrong to refuse the application for new evidence in respect of the witnesses and allowed this evidence at appeal. The result of the appeal found the earlier will to be valid.

Sometimes it takes a case such as this to highlight problems that can be more widespread. Administrative difficulties when signing wills are not uncommon which is why our team always prefer to meet clients in person to sign a will. We can provide the witnesses and ensure that the will is validly executed. When sending wills to clients that are to be signed at home, we check the wills thoroughly when they are returned to us to ensure that on the face of it, they have been validly executed.

By doing this we can be assured, and in turn reassure our clients, that any will drafted by the team at BPE will be valid, in order and stand up to the highest scrutiny, should any conflict or issue arise.

These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.