Signing your Will Correctly

17 February 2017

Signing your Will Correctly

Your Will is your last statement setting out exactly how you want your estate to be distributed upon your death. Once a Will has been drafted, it is not deemed to be effective until it has been signed correctly. Therefore, it is essential that it is signed correctly in order to make it legally binding. If your Will has not been signed correctly then there could be questions raised regarding its validity.

Section 9 Wills Act 1837 provides that no Will shall be valid unless:

  1. It is in writing, and signed by the testator, or by some other person in his presence and by his direction; and

  2. It appears that the testator intended by his signature to give effect to the Will; and

  3. The signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and

  4. 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)

It is essential that your Will is signed in accordance with Section 9 Wills Act 1837. If the formalities of this section are not complied with, then your estate may be distributed in a way that you may not have chosen when you were alive in accordance with the rules of intestacy.

Any mark made by you on the Will has the effect of validating it, as long as you had the intention that the mark or signature would validate your Will.  It is important that the signature page of your Will is an accurate reflection of how your Will is to be signed. There are numerous examples where the signature page may need to be slightly different:

  1. If you are unable to read, the signature page should state that your Will has been read to you.

  2. If you are unable to sign the Will yourself, you may ask someone else to sign on your behalf and the signature page will need to state that someone else has signed for you.

  3. If you can sign the Will, but you have trouble signing clearly, the signature page can be amended to state that you are making a mark and that you intend for that mark to be your signature.

  4. It is not strictly necessary to date your Will in order for it to be legally binding but it is advisable in order to avoid any doubt regarding whether it is indeed your latest Will. It also means that additional evidence would be required upon your death.

In order to comply with the requirements of the Wills Act 1837, the best practice is to arrange the Will to be signed in the same room as the two witnesses. It is crucial that both witnesses see you sign the Will. If one of the witnesses does not actually see the signing of the Will, then the Will is considered to be invalid.

It is not necessary for the witnesses to know the contents of the Will, but they must be aware that it is a Will. The witnesses must watch you sign your Will and then sign underneath confirming that the Will has been signed by yourself without pressure from another party.

It is important to carefully consider who you want to act as a witness for the signing of your Will. Section 15 Wills Act 1837 provides that a beneficiary, or a close relative of a beneficiary e.g. spouse, must never witness the signing of the Will as this will result in their intended gift being rendered void.

There are also certain characteristics that a witness must possess:

1.    They must be over the age of 18.
2.    They cannot be blind.
3.    They must be traceable if required upon your death.
4.    They must understand what they are doing.

The witnesses do not have to be professional persons and they do not require any special qualifications. An ideal witness is someone who is as independent as possible e.g. a neighbour or a work colleague.

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