A Will is one of the most important documents you will ever make. So getting it right and making sure it is valid should be a priority.
Sadly, many people do not understand the formalities that need to be met when making a Will. This can mean that their Will is invalidated, and their wishes not acted on upon their death. A major issue when making a Will is ensuring that it is executed (signed) correctly.
The requirements for the proper execution of a Will
The requirements for the proper execution of a Will are set out in the Will Act of 1837. Under Section 9 of this Act, for a Will to be valid it must be:
- In writing and signed by the Testator or some or some other person in their presence and by their direction and
- It appears the Testator intended by signing the Will to give effect to the Will and
- The signature is made or acknowledged by the Testator in the presence of two or more witnesses present at the sign and
- That each witness attests and signs the Will and acknowledges his signature in the presence of the Testator.
It has always been understood that the term ‘present’ meant that the Testator and the witnesses were in the same room at the same time of each other.
During the Coronavirus pandemic emergency legislation was introduced
At the height of the Coronavirus pandemic in 2020 Parliament introduced emergency legislation to allow for the remote witnessing of Wills. This extended the definition of ‘present’ to include presence via videoconference or other visual transmission. This ensured that Wills could be witnessed remotely without a breach of lockdown regulations.
This legislation was to be valid for Wills signed on or after 31st January 2020 for a period of 24 months. The legislation was further amended to extend the remote witnessing of Wills for Wills signed up to and including 31st January 2024.
The government decided not to extend the remote witnessing requirement. Wills now have to be signed in the traditional way.
It is important that your Wills are witnessed correctly. If they are not done so then they can become invalid.
Unfortunately, we often see instances where Wills have been incorrectly executed. Especially in instances where it has not been professionally prepared or is signed without the presence of a Will specialist. Examples of this include a Will signed by the testator but only in the presence of one witness.
Another issue arose when a Will was not dated but was apparently signed in the presence of two witnesses.
When speaking with one of the witnesses about the date the Will was signed it transpired that the two witnesses were not present at the same time. And they did not see or acknowledge their signatures in the presence of each other. In both incidences, the Wills were deemed to be invalid as they did not satisfy the requirements of the Will Act.
What happens when no valid Will is left
When no valid Will is left, any earlier Will made by the Testator will be deemed to be valid. Disappointed beneficiaries may need to seek legal action to receive any inheritance that they feel that they should have been due.
Alternatively, if no previous Will has been made by the Testator, their Estate will pass under the rules of Intestacy. The order of priority on Intestacy is set out in Section 46 of the Administration of Estates Act 1925 and does not, despite campaigning, necessarily reflect societal changes since these rules were put into force.
The current Intestacy Rules, for example, do not recognise unmarried and cohabiting partners. Nor do they recognise step of foster children. Merely biological children of the deceased or adopted children.
It is vitally important that everyone makes a Will and that the formalities of the Wills Act are adhered to.
If you need to make or update your Will please contact a member of our Private Client team today.