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How to know if a Will has been executed properly - considering lack of due execution

View profile for Jordan Davies
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When considering a Will, it is important to first check whether it has been executed properly as if it has not been properly executed then the Will is invalid and the terms therein have no effect.

Valid execution of a Will includes the following:

  • The Will is in writing, signed by the testator, or someone in their presence who has been instructed to sign the document on their behalf
  • The testator intended to give effect to the Will, when signing the document
  • The testator signs the Will in the presence of two or more witnesses who are there at the time the testator is signing
  • Each of the witnesses must attest and sign the Will at the same time

Lack of due execution has been an recurring issue with home-made Wills, with this becoming a particular issue during the covid-19 pandemic. ‘Covid Wills’ have caused problems due to people both giving instruction remotely and also executing Wills remotely. It is commonplace for people to attend upon their drafting solicitor to execute the Will at conclusion, ensuring valid execution. However, as this was not possible during the pandemic due to lockdown restrictions, many people were executing Wills at home, with the help of family, friends and often neighbours acting as witnesses.

When the testator is signing the Will, both witnesses should be present. Though the witnesses are not required to sign the Will themselves at the exact moment in time – it is possible for them to witness the testator’s signature and sign the attestation at a later time (in the presence of the testator), but ideally not too much later. It is also not necessary for the witnesses to read the Will – there isn’t even any need for them to be aware of what the document is. Their only role is to witness the testator’s signature.

The involvement of friends and family in executing a Will can be tricky. If an intended beneficiary of the Will i.e. someone who is due to receive something under the terms of the Will, acts as one of the witnesses, then the gift to them will be void. This is pursuant to Section 15 of the Wills Act 1837.

It is not a requirement for a Will to be drafted and executed with the assistance of a solicitor. Homemade Wills can be perfectly valid, but there is a risk that some requirements to ensure due execution could be missed, resulting in an invalid Will.

A Will can be either typed or handwritten and the signature of the testator can be in any form including a formal signature, initials or a scribble of some nature. There are even cases wherein a fingerprint have been accepted as a signature.

Whilst it is good practice for a Will to be dated, if it is not dated this will not deem the Will invalid. Dating a Will is important to be able to place the Will at a certain time in the testator’s life. It can also be integral in determining the current Will, if the testator had executed more than one will during their lifetime.

There is a presumption of due execution if a Will appears to be properly executed. If a party were looking to challenge due execution of the Will, it would be for them to bring their case in demonstrating that due execution had not taken place.

If you feel that a Will has not been duly executed, or you are in a position whereby you need to defend the due execution of a Will, please get in touch with our specialist inheritance dispute solicitors on 0161 696 6178.

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