Probate Guide – Challenging the formal validity of Wills

Challenging the formal validity of Wills

The validity of a Will can be challenged on any of the following grounds:

• A failure to adhere to proper formalities
• Lack of testamentary capacity
• Lack of knowledge / approval
• Undue influence
• Fraud
• Forgery

This guide shall limit its consideration to the first of these grounds, relating to the ‘formal validity’ of a Will. The remaining grounds go to ‘substantial validity’ and will be the subject of later papers.

What are the proper formalities?

When contesting a Will the first task is to determine whether it has been executed in compliance with the Wills Act 1837. The Act provides a number of formalities that must be complied with in order to ensure that a Will is valid.

As a general rule, a Testator must have attained the age of 18 at the time of making a Will (the Wills Act 1837, s.7).

In addition, for deaths arising after 1 January 1983, Section 9 of the Wills Act 1837 (as substituted by the Administration of Justice Act 1982, s. 17) (‘the Act’) dictates 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; and
• It appears that the Testator intended by his signature to give effect to the Will; and
• 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:
  • attests and signs the Will;
  • or acknowledges his signature, in the presence of the Testator (but not normally in the presence of any other witnesses), but no form of attestation shall be necessary

The Will must be in writing

A Will may be documented by a range of different means that make the terms visible (i.e. ink, pencil, type or otherwise).  Where a Will is written in both pencil and ink, there is a presumption that the pencil text is merely deliberative and will be excluded from probate unless the court determines that it represents the Testator’s final intentions.

The Will must be signed

The Act, section 9 (a) dictates that a Will may be signed by the Testator, or by some other person in his presence and by his direction. A ‘signature’ can be anything that the Testator intends to stand as such.

By way of example, the following have been found to qualify as signatures:

• The signatory’s initials: In the Goods of Savoy [1851] 15 Jur 1042
• The phrase ‘your loving mother’: In the Estate of Cook [1960] 1 WLR 353
• A thumb print: Re Finn [1935] 52 TLR 153
• A seal or stamp: Re Emerson [1882] 9 L.R.I.r. 443
• A segment of the Testator’s name: In the Goods of Chalcraft [1948] 1 AII ER 700

Whilst a Testator need only sign part of his name, it is a requirement that he has completed all he intended to write. Furthermore, the Testator must complete it in the presence of two witnesses (as opposed to completing only part of his signature in front of two and thereafter completing it in front of only one – see Re Colling [1972] 3 AII ER 729).

The fact that a Testator has been assisted in signing the Will does not render it invalid, albeit in instances where they are too weak to do so it is permissible (and perhaps prudent) to allow someone else to sign on the Testator’s behalf (see below).

If the Testator chooses to sign the Will himself in the presence of two witnesses, assisted by another person, the Will is only validly signed in accordance with section 9 (a) if the Testator makes some positive and discernible physical contribution to the signing process.

Signature by another

A person other than the testator is permitted to sign a Will provided that it is done in the presence of the Testator and at his direction. A signature will be effective even if the person signing on behalf of the Testator signs in his own name. In order for a Testator’s direction to be valid it must be via positive communication (as opposed to mere acquiescence). Such a direction can be communicated verbally or non-verbally.

When the Testator directs another person to sign the Will on his behalf and that person does so, in the presence of the two witnesses, he must indicate to the witnesses that the signature was placed there at his request. The Will is then ‘signed’ by the Testator within Section 9 (a), and no subsequent acknowledgement of his signature is necessary.

The Act, section 15 makes a gift void if an attesting witness is the recipient, but this does not extend to signing at the direction of the Testator (albeit this is relevant to the issue of knowledge and approval). Notwithstanding this, it is clearly undesirable that beneficiaries should be permitted to execute a Will in their own favour, in any capacity. Such circumstances will excite the suspicion of the court and demands that it closely examines the evidence in support of the instrument.

Timing of signature

It is essential that the Testator’s signature is put to the document after the testamentary dispositions have been included, unless the writing of the Will and making of the signature were all part of one operation.

Testator intends his signature to give effect to the Will

A Will shall not be valid in the absence of such intention. For example, if a Testator is under the false understanding that a Will is not valid until dated, and therefore signs it and leaves it undated, he lacks the requisite intention to execute the Will.

By way of slight deviation, section 9 does not require that a Will be dated and so the absence of such does not invalidate the same. Despite this, one can clearly envisage the raft of problems that can arise where there are two testamentary instruments in existence given that it may be impossible to determine which is the most recent.

Interestingly, Marley v Rawlings [2014] UKSC 2 involved a husband and wife who made mirror Wills and then mistakenly signed each other’s document.  It was eventually determined that the Testator intended his signature to give effect to the document he signed (albeit he was mistaken as to which document that was) and hence the Act, section 9 requirements had been met.  It followed that the Will was properly executed and could be admitted to probate, following which it could be rectified to properly express his intentions.

Signature is made or acknowledged in the presence of two or more witnesses present at the same time

The Act, section 9 (c) requires that for a Will to be valid, the Testator’s signature must be made or acknowledged by the Testator in the presence of two witnesses both present at the same time. This requires the witnesses to be in the visual presence of the Testator at the relevant time.

Such witnesses do not have to know that the document being signed is a Will nor do they have to be able to see the whole document.  It is sufficient that the witnesses can see the Testator writing what the court determines to be his signature.

As previously mentioned, a witness should not be a beneficiary to the Will. If they are, they will lose whatever gifts or bequests they were entitled to under the Will by dint of section 15 of the Act.

Practitioners should bear in mind that they owe a duty to the Testator at execution and also when the Will is returned after execution. Following Esterhuizen v Allied Dunbar [1998] 2 FLR 668, it is prudent to offer to personally oversee the execution of a Will (as opposed to merely leaving written instructions to the client).

Witness signature or acknowledgement

Once the aforementioned steps have been taken, the witnesses must sign or acknowledge the Will in the presence of the Testator with the intention of attestation. For a Will to be valid, the Testator needs to be physically present (within visual sight, albeit he does not need to avail himself of the opportunity to look) and mentally present (conscious of the attestation).

It is important to remember that the witnesses do not need to sign in the presence of each other, only in the presence of the Testator (cf. making or acknowledgement of Testator’s signature in presence of both witnesses). As such, it is permissible for a Testator to sign in the presence of both witnesses, for W1 to leave without signing and for W2 to attest the Will in the Testator’s presence. W1 can then sign the Will in the Testator’s presence at a later date. In these circumstances the Will would still be valid.

Attestation Clauses

A rebuttable presumption of due execution arises when a Will contains an attestation clause stating that all formalities have been properly complied with. In the absence of such a clause, affidavit evidence will generally be required from the person putting forward the Will so as to prove due execution.

The fact that witnesses may give evidence to the effect that they have no recollection of witnessing the deceased sign the Will is not enough to rebut the presumption of due execution.  Even positive evidence that the witness did not see the deceased sign may not be enough to dislodge the presumption unless the court is satisfied that it has the ‘strongest evidence’. The same approach applies to evidence that a witness did not intend to attest when he saw the deceased sign when the Will contains their signatures and an attestation clause. It follows that it is difficult to challenge a Will on this basis in the absence of very strong evidence that the witnesses could not have witnessed it (e.g. both witnesses claim they were nowhere near the place of execution stated in the attestation clause on the particular date).

Practical Considerations

Before challenging the formal validity of a Will it is critically important to fully understand the implications of doing so. It may well be that there is a prior validly executed Will that will be admitted into probate in its place, or the intestacy rules could apply.

In the event that the consequences of a successful challenge warrant the costs involved for the client, it is important to act swiftly so as to prevent a Grant of Probate being taken out such that the assets within the estate are distributed in accordance with the invalid Will (i.e. in the first instance by entering a caveat at the Probate Registry – see Non-Contentious Probate Rules 1987, r.44 – these a currently being revised).

A caveat will prevent the sealing of a grant provided it is entered prior to 10 am on the date of grant. The caveat remains effective for 6 months but can be renewed by a further 6 months (on an unlimited number of occasions) by making a written application prior to the caveat’s life-time. In the event that a grant has already been issued an order for revocation will need to be sought.

Aidan O’Brien is a member of the Farrar’s Building Trusts & Probate Group and accepts instructions in all aspects of contentious Trusts & Probate. For more detail on his practice areas, click here.

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