Is Your Will Validly Executed?

You may already have a Will or be thinking about getting a Will in place. Did you know that if your Will is not executed properly, it will not be valid upon your death? If this is the case, your estate will be distributed in accordance with the rules of intestacy. Intestacy means that your assets are distributed to family and if they cannot be found, pass to the Crown. Crucially, it means your assets are left to people who you may not have otherwise benefitted or have wanted to benefit. It may also mean that somebody you were keen to provide for may go without, such as a partner you never married or a Charity. They may have recourse to the legal system but this would be subject to a successful claim under the Inheritance (Provision for Family and Dependants) Act 1975 and litigation is expensive, time consuming and at times stressful. Therefore, it is imperative that you ensure your Will is validly executed to minimise the risk of challenge and even more importantly having it set aside completely. Attestation clauses also need to be amended to suit an individual’s particular needs, for instance,  if someone cannot read, or physically pick up a pen to sign their Will, the attestation clauses can be adapted accordingly. Along with ensuring that your Will is correctly witnessed, if someone is making a major change to their Will or cutting out someone they financially support/ certain family members, a professional can also provide you with advice on how to mitigate potential challenges and claims  against your estate in the future.  Therefore, it is highly advisable to take independent legal advice on the content and attestation of your Will.

The formal requirements for the execution of a valid Will can be found within section 9 of the Wills Act 1837. This provision confirms that a Will shall not be valid unless:

  1. it is in writing, and signed by the testator (i.e. the person making the Will), or by some other person in his presence and by his direction;
  2. it appears that the testator intended, by his signature, to give effect to the Will;
  3. the signature is made or acknowledged by the testator in the presence of two or more independent witnesses present at the same time; and
  4. each witness must either sign the Will or acknowledge his/her signature in the presence of the testator.  

It is also crucial to understand who can and cannot witness your Will. If you have named a beneficiary in your Will (i.e. somebody who will benefit from your estate), they cannot act as a witness to the Will or else the gift to them will fail.

In the recent case of Marley v Rawlings, mirror Wills which were signed by Mr and Mrs Rawlings were found to be invalid. The couple had both signed the Wills, however they did not sign their own Will, but rather each other’s. This error did not emerge until the second death, being that of Mr Rawlings. The Court held that Mr Rawlings’ Will could not be admitted to probate as it did not comply with Section 9 of the 1837 Act. This was not only due to that fact that Mr Rawlings had not signed his own Will, but most importantly he had not intended to give effect to the Will which he had signed. Consequently, the estate passed to Mr and Mrs Rawlings' children under the intestacy rules, instead of to their adopted son as stated in their Wills.  

The importance of adhering to the strict execution and validity criteria found in Section 9 cannot be emphasised enough. In the case above, the mirror Wills were made in 1999 but the mistake remained unnoticed until 2006. Had the error been spotted earlier, new Wills could have been drawn up and the adopted son in the case would have benefitted from his parents’ estate.  

There is a valuable lesson to be learned from Marley v Rawlings; a Will is invalid if the requirements of section 9 of the 1837 Act are not precisely complied with, even in cases where there is clear intention to create a Will.

If you would like to check whether your current Will is valid, have a new Will drawn up or an existing Will amended, then please do not hesitate to contact our specialist Wills and Estates Team at either our Southend or Benfleet office on 01702 338338, or our Billericay office on 01277 500123.