Contesting a Will on grounds of invalid procedure or lack of valid execution

The Wills Act 1837

In order for a Will to be valid it must be properly executed. This is governed by the Wills Act 1837, an archaic piece of law that is long overdue for reform. 

The Act specifies that a Will must be written, but doesn’t specify details. Therefore, handwritten Wills and printed Wills are both acceptable. Most Wills these days are written on paper but in fact a Will can be written on any material as long as the other requirements are met and it can be produced to the probate registry.

Another requirement is that the Will is to be signed by the testator. However it does not define what is meant by ‘signed’. In the relatively modern case of Re Parsons [2002] a thumb print from the testator was recognised as the testator’s signature and the Will was upheld.

Valid execution

The main requirements for a Will to be properly executed are:

The testator must be aged 18 or over. 

The Will must be in writing and signed by the testator. The testator can direct someone to sign the Will on their behalf if they are unable to. However the testator must be present and direct the person to do so.

The testator must have the intention that their signature is to give effect to the Will.

The signature is witnesses by two independent witnesses and each witness is to sign the Will. 

If it appears these requirements have been adhered to it raises the legal presumption that the Will has been validly executed, unless evidence to the contrary arises. 

The presumption strengthens if the Will has been drafted by a solicitor who has then overseen its execution

Homemade Wills

Challenges to the validity of a Will are often pursued where the Will is homemade or drafted by an unqualified Will writer.

Should a Will be found to be improperly executed it will be deemed invalid. 

If an earlier, valid Will is in existence then this will come into effect. If there is no previous Will the testator will be deemed to have died intestate and the estate would be distributed in accordance with the intestacy rules.