Witnessing a will – the importance of ‘how’ not ‘where’
When it comes to witnessing a will, it doesn’t matter where it takes place – in an office or on a car bonnet – as the court found in Wilson v Lassman recently.
You might think that a will must be created in solemn circumstances, perhaps there is some requirement that witnessing a will must be carried out indoors to be valid. The truth is that as long as the will has been signed and witnessed in the correct way, where this takes place is irrelevant – as the court found in the case of Wilson v Lassman.
When Mr Wilson made his will, he drew it up on a will form, himself without the assistance of a solicitor or will writer. Having done so, he signed the will before meeting with his executors, who then signed the will on the bonnet of Mr Wilson’s car. In fact, the executors had been working on a car on a neighbouring driveway. Mr Wilson called them over, asked them to witness his will, and they did so. Sometime 4-5 years after Mr Wilson’s death in 2011, his estranged son, who had been disinherited under the will, became aware that his father had died. He was out of time to bring an Inheritance Act claim, although did take steps to apply for the permission of the court to bring such a claim. He then amended his claim to challenge the validity of the will on the grounds that it had not been properly executed.
Preparations for the case involved the use of enquiry agents to locate the witnesses and establish exactly what had happened. During the course of this process, some of the evidence appeared to conflict and suggested that the will had not been properly executed. In the end, though, the will was upheld as valid.
The Court found that
- The will had been signed by Mr Wilson before he called his witnesses over.
- However, Mr Wilson had ‘acknowledged’ his will and his signature in the presence of the witnesses
- The conflict in the witness evidence obtained by the enquiry agents arose because one of the witnesses was suffering from memory loss issues at the time his statement was prepared (not when he witnessed the will).
Acknowledging a signature
The requirements for a valid will are set out in s.9 of the Wills Act 1837. A valid will must be in writing and signed by the person making the will (the Testator). It must appear that the Testator intended to give effect to the will. The signature must be made or acknowledged by the Testator in the presence of two or more witnesses, who must be present at the same time. Each witness must either attest and sign the will or acknowledge his signature in the presence of the testator.
In this case, it was accepted that Mr Wilson, the Testator, had signed the will before he met up with the witnesses. This was not fatal, though, because Mr Wilson then acknowledged his signature in front of both witnesses.
Location of signature irrelevant
The exact location where witnessing a will takes place – in this case, Mr Wilson’s car bonnet – is largely irrelevant. What this case shows if anything is that where a will is executed does not matter – only that the requirements of s. 9 of the Wills Act are met. Although ultimately the Claimant, Mr Wilson’s disinherited son, failed, the circumstances in which the will was drawn up – the DIY will, the informal nature of the execution – did bring into question the validity of the will. This led to no doubt lengthy and expensive preparations for a court hearing which could have been avoided had Mr Wilson taken a more formal approach to drawing up his will.
If you are concerned about the validity of a will, it’s worth taking advantage of our free claim assessment to understand the grounds on which you could bring a claim, and your likelihood of success. Get in touch using our contact form, or by calling 020 3322 5103