Due Execution of a Will

Disputed Will Solicitor, Lee Dawkins, looks at the legal requirements for a valid Will

Wills need to be prepared in accordance with some very strict technical rules in order to be valid. Those rules are set out in section 9 of the Wills Act 1837. In essence a valid  Will must be:-

a) in writing;
b) signed by the testator; and
c) witnessed by two or more people present at the same time. 

The witness can either attest and sign the Will or simply acknowledge their signature in the presence of the testator, though not necessarily in front of the other witnesses.

Providing these formalities are observed and complied with, the Will shall be presumed to have been duly executed.

The case of Ahluwalia v. Singh and others (September 2011) demonstrates the importance of ensuring due execution of a Will where there is an attestation clause.

In that case, the deceased executed a Will in May 1999 leaving his three sons his residuary estate in equal shares. Two of his three daughters were bequeathed pecuniary legacies of £20,000 each. His third daughter did not benefit under the Will.

The Will was signed by two witnesses and included an attestation clause declaring:-

“Signed by the above named testator as his last Will in the presence of us both present at the same time who in his presence and at his request and in the presence of each other have hereunto subscribed our names as witnesses.”

However, contrary to the specific wording of the above clause, it later transpired that one of the witnesses was not present at the time the Will was signed by the testator and the other witness.

The deceased died in March 2009 and probate was subsequently granted to his son in March 2010.

The net estate had a value of £872,890

The Claimant, one of the pecuniary legatees, brought a claim to revoke the Grant of Probate and have the Will declared invalid on the basis that contrary to the attestation clause and section 9 of the Wills Act 1837 the deceased had not signed the Will in the presence of the two witnesses.

The Claimant relied on a witness statement from one of the witnesses confirming that whilst he witnessed the Will in front of the deceased, the other witness named in the Will was not present.

The other witness initially provided a statement to the same effect. However, he later tried to renege on this; claiming that he would not have signed the Will if he had not complied with the attestation clause.

The Court declared in the Claimant’s favour; stating the first witness was more credible. The judge thought that the evidence was sufficient to rebut the strong presumption in favour of due execution.  

The Will was declared invalid and the Grant of Probate revoked.

As the deceased did not have an earlier Will, he was taken to have died intestate and his estate was distributed to his six children in equal shares in accordance with the intestacy rules. 

If you are thinking of contesting a will on grounds of invalid procedure contact us now for a FREE CASE ASSESSMENT.