Signing of a will
The Formalities relating to Wills, is contained in the Wills Act 1837, which states that for a will to be valid :-
The will must be in writing :-
- the will must be testator or by some other person in his/her presence
- it must be clear that the testator intended by his signature to give effect to the will
- the signature must be made or acknowledged in the presence of two witnesses present at the same time
- each witness must attest and sign the will or acknowledge his/her signature in the presence of the testator
Common Issues with Wills
When probate is applied for, the Original Will must be submitted. The probate registry will always inspect carefully the original will, so as to ensure the will has been correctly executed. Very often problems do arise, the most common of which are outlined below :
The signature of the will – it’s faint or signed in the wrong place
If the signature on the will is very faint, the probate registry may well require the signature as infirm. If this is the case the probate court may well be concerned that the testator had the necessary capacity to make a will. If this is the case the probate court may well require an affidavit ( a sworn statement ) clarifying how the circumstances of how the will was signed, very often this will involve the witnesses to the will if they can be located. Expert legal advice should always be sought in these types of case.
Position of the signature on the will
Problems can arise when the signature on a will, does not appear in the correct place which typically is at the end of the document, next to the witnesses signatures. Sometimes the signature can appear at the top of the document, on different pages or maybe in the margin. If this does occur then affidavit evidence will be required to determine whether the testator did correctly execute the will.
Acknowledgement of Signature By Witnesses
It is crucial that the Testator sign the will in the presence of Two witnesses, who are both at the signing at the same time. We have encountered numerous instances whereby the will may have been signed but not actually in the presence of the witnesses who may have signed later.
There is no date on the will
Technically, the Wills Act does not provide that the will must be dated, however if no date is on the will, issues relating to the wills execution often arise. For example, did the witnesses correctly witness the signature ?. Consequently, the probate office may request an affidavit of due execution, confirming the will was correctly signed and witnessed.
There is writing on the will – which is unclear as to whether it arose prior to the signing of the will or after
Very often we encounter issues whereby there are apparent additions made to a will, for example a legacy maybe crossed out or a beneficiaries name added. If this is the case the question as to whether the alterations arose at the time of signing the will or after arise. Any amendment must comply with the Wills Act in so far as the amendment must be signed and witnessed correctly, otherwise the amendment does not take effect.
There is doubt as to whether the will is the original
The Original of a will is always required when probate is applied for so always check carefully that the original has been sent. If the original is missing i would you can check these places to start with. If the original cannot be located then the application becomes more complicated and the consent of the blood relatives is then required which can be complicated.
Have you been contacted by the Probate Court ?
If you have been contacted by the probate registry it is very important that you seek legal help immediately – we can help – we regularly help executors or administrators that have been contacted by the probate registry – call us on 0845 269 3571 or complete our online enquiry form.