A will must be executed in accordance with strict formalities set out by Section 9 of the Wills Act 1837 which provides that no will is valid unless:
- It is in writing, and signed by the testator, or by some other person in his presence and by his direction.
- It appears that the testator intended by his signature to give effect to the will.
- The signature is made or acknowledged by the testator in the presence of two or more witnesses present at the time.
- Each witness either:
- – attests and signs the will; or
- – acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness)
A few key points to note from this:
- A will can be handwritten or typed, and any form of material will suffice.
- A testator’s signature can be in any form, e.g. a scrawl or initial. Even a thumb print has sufficed in the past (Re Finn [1935] 52 TLR 153), as did the words ‘your loving mother’ in the Estate of Cook [1960] 1 WLR 353.
- Both witnesses should be present at the time when the testator signs or acknowledges his signature, but they do not need to sign in each other’s presence; the important point is that at some point the testator has to have signed or acknowledged in the presence of both.
- A beneficiary (or a beneficiary’s spouse) can act as a witness but the gift to them will be void
- The witnesses are not required to read the will or even know it is a will. They are not required to be aware of the content or check with the testator it represents their wishes; their role is simply to witness the signing.
- A will does not have to be dated to be valid, however it is important that it is to ensure it is the last will of the deceased.
There is a presumption of due execution if, on the face of it, a will is properly executed but there are surprisingly high numbers of disputes regarding whether a will was properly executed and investigations are required into the circumstances surrounding execution.