Challenging A Will For Invalid Execution

A Will can be challenged to be invalid in many ways, including but not limited to the below:

• Its contents are unclear as to its terms;
• The assets left by a testator are no longer in their possession on death and therefore any reference to them cannot be valid;
• The testator lacked testamentary capacity or was unaware of the Will’s contents and effect; or
• The Will does not meet the necessary requirements to form a valid Will, as prescribed under the Will Act 1837.

This blog focuses on the execution of a Will.

Invalid execution of a Will

The testator must be aware of the document he/she is signing and its effect. This means the testator knows he/she is executing his/her Will and that the instructions in the Will are to be followed on his/her death.

Under the Wills Act, a Will must be signed by the testator before two witnesses. Each witness is then required to sign the Will to acknowledge that the testator signed the Will before them. Whilst it is expected any testator will sign the Will before the witnesses, this is not always required. The Act allows for the testator to simply acknowledge his/her signature before the witnesses, which allows the testator to sign the Will at any point so long as this is before it is witnessed.

The need for two witnesses is strict and means both witnesses must be present at the same time when the testator signs or acknowledges his/her signature on the Will. This means it is expected that all three parties will be together at the same time for the signing. The witnesses are not required to know the contents of the Will, which allows the testator to maintain some confidentiality if they wish. It should be noted that a person witnessing the Will should not be a beneficiary under the Will, as in this instance any benefit they are due to inherit becomes invalid.

The witnesses are not required to sign the Will at the time of witnessing, but both are required to sign the Will. The case of Re White confirmed it is not possible for one witness to sign on behalf of both witnesses. Whilst witnesses can sign the Will at a later date, it is advised this is done whilst witnessing the signing not only for practicality, but in the unfortunate event the testator dies before the Will is signed by the witness the Will will be declared invalid.

The witness’s signature does not need to be their formal signature, although this would appear to be most suitable. The case of Payne and another v Payne held that a witness making only a mere mark on the Will may be sufficient, so long as there is something physical on the Will confirming they witnessed its execution. This tends to apply in instances when the witness has some physical impairment preventing a formal signature.

It is often difficult to confirm a Will is invalid due to its execution at a first glance, providing the testator has signed and there are two other signatures of the purported witnesses. The case of Sherrington acknowledges this and confirmed the general presumption is that a Will was duly executed, unless proved otherwise. The onus on proving a Will was invalidly executed lies with the person challenging a Will’s validity, which can be a difficult task unless they have knowledge of the Will being incorrectly executed.