For a will to be valid it must be made and signed in accordance with the Wills Act 1837.
It may seem the simplest part of dealing with wills but often this is the part which causes the most problems. If a will is not correctly attested as per section 9 of the Wills Act 1837, this may lead to additional costs and delays in proving the will or even the will being found not to be valid and unable to be accepted at probate.
For a Grant of Probate to be issued the Probate Court will look at the validity of the will. This being that the will has been attested correctly and not tampered with.
The attestation page, commonly the last page, is the most important part of a will – without this a will is invalid. The testator is required to sign and date the will in the presence of two people – the witnesses.
Section 9 of the Wills Act 1837
No will shall be 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 necessarily in the presence of any other witness), but no form of attestation shall be necessary.
(source: s9 of the Wills Act 1837)
Note: s9 of the WA 1937 does not require a will to be dated in order for it to be valid; however a will should be dated in order to prove that it was the testators last will and testament. If the testator had made previous wills, and these had not been destroyed there could be difficulties in proving which was the last will made leading to extra expense/ time and a danger that an earlier will is proved. There is also another reason for a dating a will; where a will contains a guardianship appointment, it is required to be dated in order for it to be a valid appointment (signed as a deed).
Key considerations for who should act as witnesses to a will. Under section 15 of the Wills Act 1837, there are actually few rules on who can act as a witness provided that they can meet the test of ‘presence’. However, the use of certain people could cause issues. The following should be used as best practice:
- Two witnesses are required. In the case; Esterhuizen v Allied Dunbar Assurance plc, 1998, only one witness was used and the judge confirmed that the duty of care does not end with the drafting of the will it also extends to the attestation of the will.
- The witnesses do not need to see the contents of the will or even know it is a will; they are to witness the signature of the testator.
- The witnesses must be present and that being awake, not intoxicated or lacking mental capacity to fulfil the test of ‘presence’. For this reason a blind person cannot act as a witness to a will, as they are unable to see the signature.
- A witness should be over the age of 18. Although there is actually no age restriction on who can act as a witness, they should be aged over the age of 18. A child would lack the awareness of what they are doing when witnessing a will so therefore would not account for a valid witness.
- Those chosen should not be elderly or in bad health to reduce the likelihood of the witness predeceasing the testator.
- If possible, witnesses should be people who can be easily traced, should evidence from them ever be required. Ideally they should be in the UK.
- At the point when the testator signs the will, both the witnesses must remain together, that is in the same room; however once the testator has signed, each witness can then sign independently of each other (final point of section 9 of the Wills Act 1837, where it mentions that the witnesses must acknowledge the signature but necessarily in the presence of any other witness).
- Witnesses must not be a beneficiary or be married to or in a civil partnership with a beneficiary named under the will. If this happens it would not cause the will to be invalid but it would however cause that beneficiary’s gift to fail.
- All wills which are drafted by WillPack, the testator is required to sign each page of the will. Although not a legal requirement – this also help to fulfil the Knowledge and Approval of the testator that they should have read and understood each page of their will and also hopefully pick up any errors.
Supervised and Unsupervised Attestation
Supervised attestation is the safest way and where possible we would always recommend that you attend the attestation to avoid the will being attested incorrectly. This way, it will help to avoid possible negligence or solicitors being engaged by disappointed beneficiaries.
Where it is not possible to attend the attestation in person, clear guidance in the form of writing of the attestation process must be supplied to the client. This should detail the steps which the testator is required to undertake.
Upon the will being attested remotely, you must also obtain a copy of the will, in particular the attestation page to ensure that it has been signed correctly. You could suggest that the testator scans and e-mails you a copy or could even photograph the page and send this to you; this way you can ensure that the will has been signed correctly.
As the consultant, it is your duty to ensure the will has been attested correctly and all steps to minimise risk have been followed.
Some key points which may assist in the drafting a clear letter of instructions (a template for this is available in our Partner Area) for unsupervised attestation.
- Two witnesses are required; and they must be physically and mentally present at the time the testator signs the will.
- Witnesses should be aged 18 or over.
- The witnesses are only confirming that it is the testators signature – they do not need to read the contents of will but they should be sure that the testator knows what they are doing. They must be confident that the testator has read their will; that they are coherent at the time of attesting the will. Witnesses are also confirming that to the best of their knowledge there is no question any outside influence using persuasion to attest the will and that in that moment of time; their signature upon the document was their choice.
- An executor may witness a will provided that they are not a beneficiary or the spouse or civil partner of a beneficiary
- Request that the testator forwards a copy of the attested will to you ensure the will has been attested correctly, as the duty of care does not just remain at the instructions being taken.
With all wills issued by WillPack, a ‘Signing Your Will’ information leaflet is enclosed which is directed at the public; this leaflet can be used in conjunction with a standard letter of instructions. Failure to provide clear instructions could mean an invalid will; leading to a negligence possible claim.
Attestation via Video Link
Where it is not possible to have the physical presence of witnesses, during the COVID 19 pandemic S9 Wills Act 1837 has been temporarily amended to allow for wills to be witnessed remotely via video link. This temporary change in the law will remain in force until 31 January 2022 although this may be shortened or extended if deemed necessary.
Witnessing the will remotely is a more complicated procedure and should only be considered as a last resort. WillPack should be informed when drafting the will if the will is to be witnessed via video link as a special attestation clause should also be included within the will.
For more information on remotely attesting a will please see our previous article.
Remote Attestation Records
With all wills supplied and drafted by WillPack, a ‘Remote Attestation Record’ will be provided. Each testator must complete one to mirror the attestation details of the will, whether it is a supervised or unsupervised attestation. The originals of these documents must be returned to WillPack where they will be retained by us on file. If the testators original will were to be lost it could be possible, together with the documents we hold, to resurrect the will.