A fountain pen to sign and execute a will

Executing a will – what not to do!

As specialists handling will dispute and contentious probate claims, we have a lot of experience of dealing with the mistakes that were made when a will was drawn up. One of the grounds for challenging the validity of a will is that it was not properly executed – and if this is the case, and the will is overturned, people who were genuinely intended to benefit from a will may find themselves left with nothing. Bearing this in mind, here are some tips to make sure your will is validly executed.

What is ‘executing a will’?

‘Executing’ a will means that it has been drawn up, signed and witnessed in accordance with the relevant law. In England and Wales, this means that the will conforms with the Wills Act 1837, section 9. To do so:

  • the will must be in writing and signed by the Testator or by someone else, but in the presence of the Testator and at the Testator’s ‘direction’;
  • it must appear that the Testator intended to give effect to the will in signing it;
  • the signature must be made (or, if someone else is signing acknowledged) by the Testator in the presence of at least 2 witnesses
  • each witness must either attest and sign the will; or acknowledge his signature in the presence of the Testator

What this comes down to is that the will must be signed by or on behalf of the Testator in front of 2 witnesses, who then usually will sign the will in front of each other.

A will signed on behalf of the Testator 

As mentioned above, a Testator may direct someone else to sign the will on his or her behalf. This often happens in the case of ‘deathbed’ wills when a testator makes a will (or a new will) in the latter stages of life and is unable to sign for him or herself. However, it’s not enough for the Testator to be passive in allowing someone else to sign the will.

In Barrett v Bem [2011] EWHC 1247 Ch, the Court of Appeal found that there was not enough evidence to show that the testator had made a “positive and discernible communication” that he wanted his will to be signed on his behalf. The Testator, Martin, had made a will on his deathbed, leaving his estate to his sister, Ann. The will was challenged by those who would inherit under the intestacy rules. At first instance, it became clear that Ann had signed the will on Martin’s behalf, even though she was to benefit under the will. The judge found that there was no evidence that Martin had directed Ann to sign – but that he must have allowed her to sign on his behalf.

The Court of Appeal overturned the decision. They held that passivity on the part of the Testator would not be enough to satisfy section 9 of the Wills Act when it came to someone signing a will on behalf of the Testator and at their direction. There needed to be a positive action by the Testator.

Mistakes may be undone by the courts

If a genuine error does occur in executing a will, the courts may be able to rectify that error. Following a long running legal saga, the Supreme Court ruled that where there is a genuine clerical error, the courts may be able to put it right. In that case – Marley v Rawlings [2014] UKSC 2 a couple, Mr and Mrs Rawlings had created ‘mirror wills’ leaving everything to each other on the ‘first death’, and then to Mr Marley on the second death. The solicitors concerned did not notice that the couple had signed the wrong wills (Mr Rawlings had signed Mrs Rawlings’ will and vice versa). The Court of Appeal agreed that it was entirely clear this was a genuine mistake on the part of all concerned, but could not be undone by any “smoke and mirrors” on the part of the court. However, the Supreme Court declared that Mr Rawlings’ will should be rectified and given effect as if he had signed the correct will.

Despite Marley v Rawlings, you should not assume that the courts will rectify mistakes. Taking care to execute your will correctly is a vital aspect of making your will and will avoid significant problems later on for your family and intended beneficiaries!