You’ve made the decision to put your affairs in order and make a Will. You’ve given serious thought to providing for your family in the future. You’ve done more than just think about it, you’ve had your Will drawn up. For the purposes of this article today, it doesn’t matter who’s prepared the Will (you, a solicitor, a Will-writer), let’s just say you have the finished article in your hands and are happy with it.
The next step is to get it signed and witnessed, and only then does it become valid and legally binding. Until it’s signed, it’s just another piece of paper with writing on. Yes, it may set out your wishes and be evidence of your intentions, but that’s not good enough. The law says it must be signed and witnessed correctly for it to be a Will.
The requirements are set out in the Wills Act 1837, Section 9, Wills Act 1837 (legislation.gov.uk) which says:-
“9 Signing and attestation of wills
No will shall be valid unless—
(a) it is in writing, and signed by the testator, or by some other person in his presence and by his direction; and
(b) it appears that the testator intended by his signature to give effect to the will; and
(c) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
(d) each witness either—
(i) attests and signs the will; or
(ii) 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.”
We usually advise that the way to be sure the procedure is carried out correctly is for the Testator (the person making the Will) and two witnesses to be present at the same time (in the same place) and for all three to remain together until the procedure has been completed. The Testator signs first with his or her normal signature, followed by the two witnesses. The witnesses sign and should add their addresses and occupations. This is important because if there’s any question raised as to what happened when the Will was signed, the witnesses need to be contacted.
This is a formal procedure and should be approached seriously. After all, you’re signing a document giving away all your possessions, so why wouldn’t you want to pay close attention? If only everyone would! Unfortunately, there are lots of examples of people making a mess of signing and witnessing, the result of which is that the Will is invalid because it hasn’t been signed properly.
How come this happens? We have heard of cases where the witnesses haven’t signed at all, or have signed but haven’t written their names and addresses (so there’s no way of contacting them), where the Testator has signed while the witnesses were out of the room making a cup of tea, or even where the witnesses have signed but for some inexplicable reason the Testator hasn’t!
Sadly, in all these cases, the Will wasn’t valid.
Who should you pick as your witnesses? In England and Wales, there must be two witnesses. They must be 18 or over for a start, and it helps if they are mature, sensible people. They can’t be blind or partially sighted because they have to see the testator sign. It’s best that witnesses are not related to the testator, even if they don’t stand to inherit. They must not be beneficiaries. If a beneficiary does witness the Will, it will still be valid, but he or she will lose any benefit under the Will. This is also true if it’s the beneficiary’s spouse or civil partner who does the witnessing.
We heard of a case not so long ago where an elderly lady had written her own Will leaving everything to three brothers who were her nephews. She used a standard Will form which she had bought from the Post Office. Although her handwriting was difficult to read, her intentions were clear enough and all would have been fine. After she died, and the Will went to Probate, it became clear that the two witnesses she had used were the respective wives of two of the brothers. Disaster! The effect of this was that those two brothers lost their inheritance because their wives had witnessed the Will. They got nothing, and the remaining brother got the lot. This might seem a little harsh, especially as no funny business was intended, and it was an honest mistake, but those are the rules about witnessing, and they hadn’t been followed.
The very clear lesson is to be careful about who you get to be your witnesses. Someone completely independent such as a neighbour is ideal, or friends can do it (as long as you’re not leaving them anything). A professional Will-writer, solicitor or accountant will usually help, but there may be a small fee. There are traps for the unwary, so take advice if you’re unsure. We always offer to supervise the signing where possible, or will be witnesses ourselves if convenient.
Do contact us if you have any queries, or would like any further information. By using our services you will have peace of mind that you’ve done the right thing by your loved ones, and the satisfaction of knowing you’ve planned for your family’s future.