The Formal Requirements To Make A Will Valid

Willenhall based will writer Jim Stanistreet, from BensonWilliams shares his knowledge on the formal requirements to make a will valid.

Section 9 of The Wills Act 1837 states that, to be valid, a Will must be in writing and must be signed by the Testator (the person who is making the Will) in the presence of two witnesses who must also sign the Will in the presence of the Testator. In the vast majority of cases it is no problem for the above to be followed exactly, but there are a number of variations to consider.

Most people will be perfectly capable of signing their usual signature. However an illiterate or severely handicapped person may only be able to make their mark, use a thumb print, write their initials, or create a very “woolly” signature. There is also some case history of people not using a signature at all but referring to themselves by such things as “your loving mother” or “mum”.

It is also possible, usually in the case of severe incapacity, for a third party to sign your Will (at your direction) on your behalf. They can do this in your name or in their own name. One of my recent articles in this magazine was about the case of Parker v Felgate 1883 when this very thing did happen.

In the case of Wood v Smith 1993 there was actually no attempt to create any kind of signature at all. The Testator simply wrote the Will by hand in the presence of two witnesses. The court held that, as this had happened in one transaction, it was okay.

The overriding consideration in all of the above scenarios is that whatever mode of signature is being used, the court must be satisfied that the Testator intended to create a valid Will.

I am regularly approached by people wanting to make a Will but knowing that due to incapacity, literacy issues, language barriers, and any number of other factors, signing is going to be an issue. With a bit of common sense and forward planning this is nothing to worry about. All professionally drawn up Wills should contain an “attestation” clause, in other words a statement by the draftsman which outlines all of the prevailing circumstances which applied at the point in time that the Will was signed (or otherwise created). Attestation clauses can be modified to suit, so the key is making sure that the attestation clause accurately captures the situation, and over the years the firm has successfully made Wills where pretty much all of the above examples have applied.

FOR MORE INFORMATION YOU CAN CALL 07789 520910 OR EMAIL info@benson-williamsltd.co.uk