In the majority of cases, signing a will in line with the S9 Wills Act 1837 formalities is a relatively simple procedure. We provide signing guidance with all our final wills that assist with showing how the will should be attested correctly. However, where there are circumstances that effect the testator’s ability to read or sign the will, special attestation methods are needed.
The Usual Requirements
Under S9 Wills Act, a will is only valid if:
- 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
Rule 13 of the Non-Contentious Probate Rules 1987 states that:
“Before admitting to proof a will which appears to have been signed by a blind or illiterate testator or by another person by direction of the testator, or which for any other reason raises doubt as to the testator having had knowledge of the contents of the will at the time of its execution, the registrar shall satisfy himself that the testator had such knowledge.”
Rule 13 raises a number of scenarios where just following the standard formalities could lead to the will not being admitted to probate. In the following situations, additional steps should be followed.
1. Blind/visually impaired testators
Where a testator is blind or visually impaired to such an extent that they are not able to read the will, it is vital that the will be read over to the testator in the presence of the witnesses so that they have knowledge of the contents. Wording would also be included in the attestation section with reference to this and that the testator appeared to understand and approve the contents of the will.
The sight of the testator may also affect their ability to sign the will, in which case point 3 may also apply to them.
2. Testators that cannot read
If a testator is unable to read, similar to the above, the will would need to be read over to the testator in the presence of the witnesses. Wording will need to be included to indicate this and that the testator appeared to understand and approve the will’s contents.
3. Testators that cannot sign
If the testator is physically unable to sign the will, there are two options open to them.
If they can still make a mark, they can mark the will instead. If this is the case, wording to this effect would need to be included in the attestation clause.
If they are also unable to make a mark, they can direct that the will be signed by another person on their behalf. If a person is signing on the testator’s behalf, wording should be included to indicate that the will has been read over to the testator and they appeared to understand and approve the will’s contents.
There are currently no restrictions as to who can sign the will on the testator’s behalf, although whether to add restrictions is currently being considered by the Law Commission. We advise that an independent person should be used to sign on the testator’s behalf. We would require the name of and address of the person who is signing on the testator’s behalf at the time of drafting the will.
4. Testators who do not understand English
If the testator does not understand English, the Will would need to be interpreted to the testator in their native language. The will would firstly need to be read over the testator in English by one witness and secondly in the testator’s native language by the second witness (the interpreter). Wording would be included in the will to state that this has been completed and that the testator appeared to understand and approve the contents of the will.
The interpreter would need to act as one of the witnesses and therefore cannot be a beneficiary or married to a beneficiary.
At the time of drafting, we would require both the name and address of the interpreter and the native language of the testator.
If any of the above apply to your clients, please let us know when the instructions are submitted to us so we can ensure that the correct wording is included in the will and we can advise on the correct signing procedure. If the will does not accommodate these, the will may not be admitted to probate without additional steps being taken to prove that the testator had knowledge of the contents of the will.