Signing a Will
Wills are one of the most significant documents that people can sign during the course of their life and, in recognition of this, the law provides that they be signed in a specific way. The procedure for signing is set out in the Wills Act 1837. The testator must sign the Will in the presence of two witnesses who must both thereafter sign the Will in the presence of the testator but not in the presence of each other. However, this is a technical point and Wills are routinely signed with the testator and witnesses all present at the same time.
As far as signing is concerned, the witness can be anyone other than a beneficiary named in the Will or someone married to a beneficiary. It should be noted that a beneficiary or someone married to a beneficiary can be a witness and that the Will is validly signed but the beneficiary signing loses the intended legacy in the Will. People are often aware that a beneficiary should not sign but are less aware of the restriction on the spouse and this can lead to the loss of a legacy and a negligence action against the solicitor drafting the Will. These restrictions apply at the date of signing and if a witness was to subsequently marry a beneficiary the legacy is payable in due course. It is best practice for the witnesses to have a separate address and a different surname to the testator to make their independence visible and probate registries often make enquiries on this point before admitting a Will to probate. There is no requirement that the witness be aged 18 and above and someone aged 16 or 17 and able to appreciate the significance of acting as a witness can be asked to act as a witness.
The witnesses are not required to see the contents of the Will but only to watch the testator sign and to add their signatures thereafter in the presence of the testator. The witnesses should preferably be in the presence of each other when they sign and are thereby able to provide evidence as to each other’s signing of the Will should questions arise.
If a Will is not signed in the required manner it will not be admitted to probate but it may be possible to resolve this problem in limited circumstances. If it can be shown that the Will was signed outside of England & Wales and in a manner in accordance with the jurisdiction it was signed it can be admitted to probate. For example, Scottish law requires only one signature and it may be possible to obtain probate in England & Wales of a Will signed in Scotland this way. However, each case turns on its own facts and there is no certainty that this or any other exception can be relied upon. The best course of action is to have a Will signed as required and for the signing to be reviewed by a solicitor thereafter.
If you are interested in writing a Will or you would like to update an existing Will, please contact Ian Barton at 01992 422 128.