Sign Here: A Will Must be Signed Correctly to be Valid
Signing a Will couldn’t be simpler - or could it? Our Will disoutes team take a look at the Wills Act and reveal the dangers that lie in wait for the unwary
Do you know how to sign a Will? It might sound straightforward enough, but many people struggle with it. The problem was evidenced recently in a case heard by the Court of Appeal, Singh v. Ahluwalia (2012).
A gentleman named Ranjit Singh made and signed his Will on 3rd May 1999. He died in 2009 and his Will was proved for Probate by his executor and sole beneficiary, his son, Jarnail Singh.
The son confirmed that the Will had been signed in the presence of two witnesses who were also in the presence of each other at the same time. This is what is required to ensure the Will is valid: The legal confirmation being in section 9 of the Wills Act (WA) 1837. So far, so good.
However, another party believed they had evidence to the contrary. The Will had in fact been folded and therefore one of the witnesses could not be certain that it was a Will he was witnessing. Even more damning, he revealed that he was not in the presence of the other witness when he witnessed the Will. The way the Will was folded, it was argued by the claimant, the witness could not even see the attestation clause, which is at the bottom of the Will. The attestation clause is of crucial significance in complying with the Wills Act. It’s where the person making the Will is required to sign and the two witnesses follow with their signatures, printing their names, addresses and occupations.
The High Court ruled that the Will was invalid, therefore revoking the Grant of Probate, due to the fundamental errors that occurred during the execution (signing and witnessing) of the Will. However, the son sought to appeal the decision on the basis that he could not believe that his father would have ignored instructions from his solicitor regarding how to execute his Will correctly.
The Court of Appeal (CA) agreed with the decision of the High Court Judge. The CA confirmed that the first witness could not recall the second witness being with him at the time he witnessed the document. So regardless of whether he knew he was witnessing a Will or not, it was enough of a failing of section 9 of the Wills Act 1837 for the Will to be declared invalid.
This case confirms that signing a Will should ideally be done either with the solicitor who originally drafted it, or under the clear instructions of your solicitor in writing.
Where we are the Will draughtsmen, we generally assist local clients in signing their Will, and provide two witnesses - at the same time - to ensure it is done correctly. If for whatever reason a client cannot make it into one of our offices for signing, we would send the original Will to them with the clear written instructions of how it should be signed with the witnesses. We then check the Will when it is returned to make sure it is all correct and send the client a copy.
This may seem a little OTT to some people but, as the above case illustrates, the Will needs to be signed correctly for it to be valid. If not, it could have disastrous effects for the testator’s loved ones.
If you are seeking to challenge the validity of a Will on the basis that it doesn’t comply with the Wills Act then give our contentious probate team a call on 0808 139 1599.
And if you are looking for a firm that can prepare a Will for you and oversee its signing and execution so that it is 100% valid then ring us on 0808 139 1606