The “modern” requirements for a valid will are set out in section 9(1) of the (only slightly amended) Wills Act 1837.
This article explores the limits of these requirements, focusing on the signing and witnessing process.
The Wills Act 1837
Section 9(1) of the Wills Act 1837 states that:
‘No will shall be valid unless-
(a) it is in writing, and signed by the testator, or by some other person in his presence and by his direction; and
(b) it appears that the testator intended by his signature to give effect to the will; and
(c) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
(d) each witness either-
(i) attests and signs the will; or
(ii) acknowledges his signature,
In the presence of the testator (but not necessarily in the presence of any other witness), but no other form of attestation shall be necessary.’
These are usually referred to as the “formal validity” requirements for a will – the documentation process that almost all wills must follow. (There are more relaxed requirements for making a will for “any soldier being in actual military service, or any mariner or seaman being at sea”, as referenced in section 11 of the act.)
Formal validity raises two interesting concepts: the signature by the testator – that is, the person making the will – and the witnessing process.
The signature
Signing a will requires the testator to leave an original signature. Applying a photocopy of a signature (as occurred in the 2009 case of Lim v Thompson[1]) is not sufficient.
That said, what constitutes a signature has been defined broadly:
- Initials have been held to be acceptable in at least four cases, the most recent of which is Reynolds v Reynolds from 2005.[2]
- An indecipherable scrawl was formally accepted in the 1933 case of Re Kieran.[3] (That said, many signatures are, at least, of questionability legibility.) Indeed, cases from the 1800s confirm that marks or crosses are sufficient.[4]
- A 1960 case accepted ‘your loving Mother’ as a signature. [5]
- A thumbprint was accepted in Re Finn.[6]
The witnessing process
The usual practice is for the testator to sign the will in the presence of the two witnesses. For the purposes of these witnesses being “present”, it is not necessary to prove that they were in fact looking at the testator when they signed, only that they were conscious of the event.
The alternative to the witnesses seeing the testator sign is for the testator to acknowledge their signature to the witnesses. In this instance, the witnesses must in fact see the signature. However, there is some flexibility in how this signature may be acknowledged:[7]
‘It would be quite sufficient [for the testator] to say “this is my will”, the signature being there and seen at the time, for such words to import an owning thereof’.
Following this acknowledgment, the witnesses must both sign the will. However, as set out in the Wills Act, it is not necessary for them to sign in the presence of the other.
As to what physical documents are included in the will, the position – mainly following cases from the 1800s – is that the sheets of paper constituting the will must be in the same room and under the control of the testator when the will is executed.
The British Diabetic Association v Chenery
How these formal requirements pull together in practice can be seen in the 2024 case of The British Diabetic Association v Chenery.[8] As described in the judgment, the will was in an unconventional form:
‘There are two separate pieces of cardboard, each is about 15 x 20cm. They are both cut from food packaging. One is cut from the top of a Young’s fish fillets box, the other is cut from the bottom of a Mr Kipling mince pie box. The testator’s […] writing is on what would have originally been the inside, the plain side, of those pieces of packaging. In each case the writing is in block letters and has every appearance of having been written in one go in the same stream of thought and by the deceased using the same pen.’
In terms of formally completing the will, the testator had signed the will and then, separately, arranged for the will to be signed by two witnesses after describing the document to them as his will. In this way, by acknowledging his signature, he had allowed the witnesses to properly witness it.
It was the unusual form of the will – that it had been written on two separate pieces of food packaging – that was the principal issue in the case: could the pieces of packaging be read together as one will or could only the second page be regarded as the will on the basis that this was the only page that had been signed?
The judge held that the documents could be read collectively as one will:
- In the circumstances of the case, where no one who would benefit from the testator dying without a will (“intestate”) opposed the will, the judge held that she should ‘have regard to the principle that the court should favour a result where the deceased, if possible, can be found to have died testate rather than intestate’.
- The manner in which the documents were written suggested that they were prepared at one time as one document.
- While the witnesses did not see the first page of the will when signing the second page, there was no positive evidence to indicate that it was not present. The judge felt that she could presume that the testator had taken the document with him to the witnesses given the circumstances in which it was prepared. In this way, the entire will was in the same room and under his control when it was executed.
Accordingly, the judge held that both pages could be taken together as a valid will.
[1] [2009] EWHC 3341 (Ch).
[2] Re Savory (1851) 15 Jur 1042; Re Christian (1849) 2 Rob Ecc 110; Re Blewitt (1880) 5 PD 116; and Reynolds v Reynolds [2005] EWHC 6 (Ch).
[3] [1933] IrR 222.
[4] Baker v Dening (1838) 8 A & E 94; Re Field (1843) 3 Curt 752.
[5] Re Cook [1960] 1 WLR 353.
[6] (1935) 154 LT 242.
[7] Hudson v Parker (1844) 1 Rob 14, 24.
[8] [2024] EWHC 3466 (Ch).
