A will can be challenged on the grounds of lack of valid execution if there is reason to believe the most basic legal requirements have not been met when the will was being created.
The legal requirements for creating a valid will have remained fundamentally unchanged for almost two centuries and are fairly straightforward. Under Section 9 of the Wills Act 1837, a will must be:
- In writing
- Signed by the testator or someone else at their direction
- Signed by two independent people who witnessed the testator's signature in the presence of the testator and each other.
Failure to meet any of the above may result in the will being declared invalid.
Material matters or not
Cigarette packs, tree trunks and even eggshells - wills can be written on any material.
There has been much discussion about the seemingly inevitable future of electronic wills, but - as things stand - the law states wills must be physical and signed.
What the law doesn’t dictate, however, is the material on which the will is printed. Paper would be the obvious choice for most, but wills have been written on cigarette packets, walls and, in the unusual case of Hodson v Barnes (1926), an eggshell. There are also stories of shipwrecked pirates scratching their dying wishes into tree trunks.
The will can also be handwritten or typed – or even written in shorthand or code – as long as it is physically present on a material.
Signed, sealed and delivered
A signature is a crucial aspect of executing a will – but it would appear that almost anything will do.
In the case of Re Finn (1935) the courts ruled that a thumbprint could be accepted as a signature. Stamps, indecipherable scrawl, symbols and even the wrong name have also been ruled valid.
The will doesn’t necessarily need to be signed at the bottom, either, with signatures in the margins and on the envelope also being accepted in the past.
However, in Lim v Thompson (2009) the will was invalidated as the document – and indeed the signature – had been photocopied.
The most important consideration for the court is whether the testator intended the mark to serve as their signature to authenticate the will.
However, while marks and fingerprints are likely to be accepted by the courts, the safest course of action is to provide a clear, decipherable signature at the bottom of the document to remove the risk of challenges.
Usually, a typed will stored on a computer will not be valid since it does not carry the original signature. There is one case that bucks this trend, though - Cooper v Chapman (2022). Here Cooper had made a will but drafted a replacement on his computer after losing contact with his children and falling ill.
The court held the digital will was valid – even though it was unsigned – as on the balance of probabilities the new will demonstrated his true wishes. There was also some evidence that the new will had been printed and signed at one stage but was subsequently lost.
Two, the magic number for witnessing a will
Along with the signature, another important aspect of creating a valid will is the presence of two independent witnesses when the document is signed.
The witnesses do not need to read or understand the will’s content – they simply must attest that they saw the testator sign on the dotted line. If the will is ever challenged under the grounds of Lack of Valid Execution, these two witnesses could be called upon to confirm they saw the signature take place. This helps to prevent fraud, ensures the testator is acting of their own free will and provides evidence of the will’s authenticity.
Covid-19 brought about huge challenges for will creation – at a time when more people than ever wanted to create a will due to additional free time and an increased sense of mortality – because of the mandate to socially distance. During this unprecedented period, the Government allowed wills to be witnessed remotely by Zoom or Skype, but that change to the law expired at the start of 2024. Only in-person witnessing is currently permitted.
Many legal documents need to be dated when they are signed but that is not necessary with a will. It is, however, a good idea to do so as it might be vital factor in deciding which will is valid if more than one exists, or potentially assessing the testator’s mental capacity at the time of signing.
Extra care with DIY with wills
Generally, the courts take a pragmatic approach when deciding whether a will is valid or otherwise. If the court is satisfied that the person intended the document to be their will and it was executed largely within the parameters of the law, minor technical deficiencies tend to be overlooked.
Even so, it is highly advisable to engage experienced will writers to reduce the risk of ambiguity and legal challenges. A minor oversight in the witnessing process, an unclear signature or ambiguous wording can all invalidate a will or lead to costly legal disputes.
Challenging a will on the grounds of lack of valid execution requires a meticulous examination of the document, potentially involving witness statements and expert analysis of signatures or other marks.
