How to contest a will – deathbed wills and mistake in execution (or what not to do when you make a will!!)

  1. The Wills Act 1837 s9 governs its execution. A will cannot be held valid unless it complies with the archaic requirements set down thereunder, so that:
    No will shall be valid unless:-

    1. It is in writing and signed by the testator or by some other person in his presence and by his direction; and
    2. It appears that the testator intended by his signature to give effect to the will; and
    3. The signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
    4. Each witness either:-
      1. Attests and signs the will; or
      2. Acknowledges his signature
        In the presence of the testator (but not necessarily in the presence of any other witness) but no form of attestation shall be necessary


  2. In essence, a will cannot be valid unless it is signed by the testator (or by some other person in his presence and by his direction) in front of two witnesses who also in general sign the will in front of each other (note though the testator can acknowledge his signature to the witnesses and the witness(es) can also acknowledge his or her signature in front of each other and the testator).
  3. A testator on his deathbed can then direct some other person in his presence to sign his will on his behalf. This was tested recently in Barrett v Bem (Court of Appeal). The difficulty for the proponent of the will in that case is that prior to the appeal trial she had alleged the testator had signed his own will. She had changed her tune somewhat after the trial (which she lost!) alleging in fact that she signed the will at the testator’s direction. One would imagine that her credibility was open to question at this point. The Court of Appeal found against her as there was insufficient evidence the testator had made a “positive and discernible communication” that he wanted his will to be signed on his behalf.
  4. Moreover it is clear by Marley v Rawlings (Court of Appeal) that there can be no variance or watering down of the requirements for executing wills laid down by the Wills Act 1837. In this case “mirror wills” were completed for a husband and wife but unfortunately they executed each other’s will instead of their own. Unfortunately the Solicitors concerned did not notice either (no doubt the subject of a separate claim!!). Whilst it was entirely clear this was a genuine mistake on the part of all concerned, it could not be undone by any “smoke and mirrors” on the part of the court. The President of the Queen’s Bench Division, Lady Black, said she had reached her decision “with great regret” as an innocent beneficiary was effectively disinherited.