Contesting a Will: Disputes over signing and executing a Will

For a Will to be validly signed and executed strict rules need to be followed. As specialist solicitor Chris Green points out, if these rules are not observed, Will disputes can arise. 

Section 9 of the Wills Act 1837 sets out the formal requirements which must be followed in order for a valid Will to be made. They include the need for the Testator (the person making the Will) to sign the Will in the presence of two Witnesses, present at the same time, and for the Witnesses to then sign the Will themselves. 

Disputes concerning the requirements of Section 9 are fortunately relatively uncommon. That is because signing a Will is usually black and white; either the Section 9 requirements have been complied with or they haven’t. Even if a dispute does arise and escalates to the point of reaching a trial, the Courts are generally reluctant to set aside a Will for failure to comply with the formal validity requirements where they believe it reflects the Testator’s true intentions.

A prime example of that is the case of Marley v Rawlings, where a husband and wife accidentally signed each other’s Wills. Whilst this was clearly a breach of the Section 9 requirements, the Court found a way to declare the Wills valid as the judge was satisfied that they reflected the couple’s true wishes.

I have recently come across a case where a firm of Solicitors prepared a draft Will and allowed a child of the Testator to collect the document and take it away for it to be executed. Only on investigation did it transpire that when the two Witnesses attended the Testator to witness the execution of the Will, the Testator was asleep, the Will had already been signed (supposedly by the Testator) and that whilst the Witnesses then duly signed the Will, they did not actually witness the Testator sign it. On the face of it, therefore, this appears to be an obvious failure to comply with the Section 9 requirements and the Will should therefore be held invalid.

The case also raises the question of whether the Solicitors had offered to deal with or oversee the execution of the Will, or had provided detailed instructions on how it should be executed. Accordingly, in these situations there may well be a professional negligence claim against the solicitors if they did not act or advise with sufficient care.

So, whilst the requirements set out in Section 9 of the Wills Act 1837 are not particularly complicated or onerous, unless you are aware of them, it is quite easy to fall foul of the rules. Unfortunately it is only after the Testator dies that the errors are discovered. By that point of course it is too late for the Testator to put it right and this is when legal disputes arise.

If you are involved in contesting a will on the basis of how it was signed or executed, or if you wish to challenge the validity of a Will, please contact us on 0808 b139 1596. We handle a variety of Will disputes, including bringing and defending validity challenges. Our specialist team is able to offer high quality, cost-effective legal advice and many cases can be funded on a No Win, No Fee basis.