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Strict rules for signing and executing a Will must be followed. If these rules are not observed then Will disputes are likely to 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.
We recently came across a case where a firm of solicitors prepared a draft Will and allowed a child of the Testator to take it away for it to be executed. Only later 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). So while the witnesses 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 ruled invalid.
The case also raised 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 errors tend to be discovered. By that point of course it is too late for the Testator to put it right, which is when legal disputes arise.
If you are involved in a dispute involving signing and executing a Will, or if you wish to challenge the validity of a Will, please contact us on 0333 888 0409. 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.