What you need to know to make sure your Will is valid
What are the proper formalities and procedures that you need to follow? Expert barrister Aidan O’Brien explains.
It is vital that Wills are properly written and executed to make sure that the Testator’s (the person making the Will) wishes are honoured. The law is long-standing and dates back to the Wills Act 1837.
As a general rule, a Testator must have attained the age of 18 at the time of making a Will. In addition, for deaths arising after 1 January 1983, the law dictates that no Will is valid unless:
- It is in writing, and signed by the Testator, or by some other person in his presence and by his direction (“his” here means “his” or “her”); 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 normally in the presence of any other witnesses), but no form of attestation shall be necessary.
The Will must be in writing
A Will may be documented by a range of different means that make the terms visible (i.e. ink, pencil, type or otherwise). Where a Will is written in both pencil and ink, there is a presumption that the pencil text is merely deliberative (ie just intended for discussion) and will be excluded from probate unless the court determines that it represents the Testator’s final intentions.
What about signature? A Will may be signed by the Testator, or by some other person in his presence and by his direction. A “signature” can be anything that the Testator intends to stand as such. By way of example, the following have been found to qualify as signatures: the signatory’s initials; a thumb print; and part only of the Testator’s name provided that he completed all he intended to write. In this particular case, the Testator must complete it in the presence of two witnesses (as opposed to completing only part of his signature in front of two and thereafter completing it in front of only one). If the Testator chooses to sign the Will himself in the presence of two witnesses, assisted by another person, the Will is only validly signed in accordance with section 9 (a) of the Act if the Testator makes some positive and discernible physical contribution to the signing process.
Clearly, the point is make sure you sign it properly and fully and in the presence of two witnesses – to avoid any scope for argument. However, if that is not possible, for whatever reason, follow the guidelines below.
Signature by another
A person other than the Testator is permitted to sign a Will provided that it is done in the presence of the Testator and at his direction. A signature will be effective even if the person signing on behalf of the Testator signs in his own name. In order for a Testator’s direction to be valid it must be via positive communication (as opposed to mere acquiescence). When the Testator directs another person to sign the Will on his behalf and that person does so, in the presence of the two witnesses, he must indicate to the witnesses that the signature was placed there at his request. The Will is then ‘signed’ by the Testator and no subsequent acknowledgement of his signature is necessary.
Signature is made or acknowledged in the presence of two or more witnesses present at the same time
The Act requires that for a Will to be valid, the Testator’s signature must be made or acknowledged by the Testator in the presence of two witnesses both present at the same time. This requires the witnesses to be in the visual presence of the Testator at the time. Such witnesses do not have to know that the document being signed is a Will nor do they have to be able to see the whole document. It is sufficient that the witnesses can see the Testator writing what the court determines to be his signature.
Please note that a witness should not be a beneficiary to the Will. If they are, they will lose whatever gifts or bequests they were entitled to under the Will by dint of section 15 of the Act.
Witness signature or acknowledgement
Once these steps have been taken, the witnesses must sign or acknowledge the Will in the presence of the Testator. For a Will to be valid, the Testator needs to be physically present (within visual sight, albeit he does not need to avail himself of the opportunity to look) and mentally present (conscious of the attestation).
It is important to remember that the witnesses do not need to sign in the presence of each other, only in the presence of the Testator (cf. making or acknowledgement of Testator’s signature in presence of both witnesses). As such, it is permissible for a Testator to sign in the presence of both witnesses, for the first witness to leave without signing and for the second witness to attest the Will in the Testator’s presence. The first witness can then sign the Will in the Testator’s presence at a later date. In these circumstances the Will would still be valid.