Is a Will valid if the witnesses have not signed it?
The Court of Appeal has clarified the law on whether a Will is valid if the witnesses have not signed it.
The case concerned the validity of a Will made by John Henry Adrian Payne. It was a typed document, which hadn’t been drawn up by a solicitor.
Under the Residuary Gift clause, there was a space for the Testator’s signature and Mr Payne had duly signed in the appropriate place.
There was then an attestation clause, which read:
“Signed by the above-named testator (testatrix) in the presence of us present at the same time who in his (her) presence and at his (her) request and in the presence of each other have hereunto subscribed our names as witnesses”.
Under that, there were four dotted lines left to be filled in, opposite the words “Witness”, “Address” which had two lines, and “Occupation” for the first Witness and again for the second Witness. There was no separate space or dotted line clearly providing for the signatures of the Witnesses.
The two witnesses, Michael Hogwood and Robert Gordon, had duly completed the relevant sections, but had not signed the will as there was no space for them to do so.
Subsequently, following the death of Mr Payne, a dispute arose between various family members and a claim was then brought to challenge the validity of the Will on the basis that the Will was not valid because the witnesses had not signed it.
For deaths before 1982, Section 9 of the Wills Act 1837, required that the witnesses “shall attest and shall subscribe the will in the presence of the testator”.
However, following an amendment by the Administration of Justice Act 1982, for deaths after 1983, Section 9 of the Wills Act 1837 requires that a witness either “(i) attests and signs the will; or (ii) acknowledges his signature, in the presence of the testator”.
The difference here is that the requirement to “subscribe” the Will was changed to the a need to “sign” the Will.
It would seem that the amendments brought in by the Administration of Justice Act 1982 were designed to simplify and modernise the formality requirements for a Will, removing some rather archaic wording. However, the underlying meanings and purposes remained unchanged. Accordingly, the Court of Appeal were of the firm view that the word “sign” should be construed as meaning the same as “subscribe”.
This in turn was confirmed as merely requiring the witnesses to write their names with the intention that the act of writing should operate as an attestation, rather than their needing to actually include their “signature” in the modern meaning of the word.
The Will was therefore held to be valid by the Court of Appeal.