Testamentary formalities

1. Who can make a will?

Over 18, with capacity and compliance with formalities

2. Duty of care owed by a solicitor

To the testator

To the beneficiaries

3. S9 Wills Act 1837 Provisions

No will shall be valid unless—

1 (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 form of attestation shall be necessary.

4. In writing
Handwritten or typed

Surfaces – issues of capacity with more bizarre surfaces.

Language – testator must know and approve contents

5. Signed by the testator

Signature = “the name or mark which is intended to represent that name” Hindmarsh v Charlton
1861. A mark could be a cross (X)

Can be an alias see eg the Goods of Redding 1850

Must be intended to validate the will; Re Chalcroft 1948: signed what she could but died before
signature complete = valid

6. Testators who can’t sign themselves

S9 (1) (a) - or by some other person in his presence and by his direction

Use a guiding hand at the testator’s request. If not at their request then not valid: Barrett v Men
2021 EWCA Civ 52.

Should not be done by a witness or beneficiary

 7. Signature just be intended to give effect to the will
Can be anywhere on the will – see eg in Wood v Smith 1993 CH – problems with this approach.

8. Role of the witnesses

Witness the testator’s signature

2 witnesses physically and mentally present when the testator signs

No minimum age limit but must be capable of providing affidavit evidence of the signing process
S15 WA: If any person shall attest the execution of any will to whom or to whose wife or husband any
beneficial devise, legacy, estate, interest, gift, or appointment, of or affecting any real or personal estate (other
than and except charges and directions for the payment of any debt or debts), shall be thereby given or made,
such devise, legacy, estate, interest, gift, or appointment shall, so far only as concerns such person attesting
the execution of such will, or the wife or husband of such person, or any person claiming under such person or
wife or husband, be utterly null and void, and such person so attesting shall be admitted as a witness to prove
the execution of such will, or to prove the validity or invalidity thereof, notwithstanding such devise, legacy,
estate, interest, gift, or appointment mentioned in such will.

This means that any gift to a witness or to their spouse (or civil partner) is void. The will is valid.

Must have a clear line of sight although don’t need to know what the testator is signing. See eg
Brown v Skirrow 1902 and Casson v Dade 1871

Pragmatic Approach in Weatherhill v Pearce 1995 1 WLR 592 but compare to Re Colling 1972 1 WLR
1440

Witnesses then personally sign the will in the presence of the testator with physical and mental
presence

9. Acknowledgement of signatures
By the testator in the presence of both witnesses – s9 (1) (c) Weatherhill v Pearce 1995 1 WLR 592

By the witness in the presence of the testator - Couser v Couser 1996 1WLR 1301 – pragmatic
approach to uphold a will?

10. Attestation Clauses

Not compulsory but good evidence of compliance with the formalities. The will is still valid without
it.

Example: SIGNED by the above named ,…….. in our joint presence and then by us in his presence

Presumption of due execution where lack of conclusive evidence that formalities complied with.

Additional evidence may be needed in such cases

Balance of probabilities – see Weatherhill v Pearce 1995 1 WLR 592:

“the correct approach is for the court to give effect to clear testamentary wishes if it is possible and
proper to do so and that as the law leans against intestacy the court should not be astute to
undermine a will unless there is clear evidence of non-compliance with the rules to be observed in
its making.”
 11. Changes during COVID restrictions
Social distancing meant difficult to comply with formalities

Wills Act 1837 (Electronic Communications) (Amendment) (Coronavirus) Order 2020 – extended to
January 2024.

Allows for remote signing and witnessing by video link – must be able to see the testator signed.

Witnesses can then sign at a later time in the online presence of the testator either individually or
together.

Issues with undue influence, capacity and delays arise

Use as a last resort

12. Current position

Law Commission consultation on electronic wills – see

https://www.lawcom.gov.uk/project/wills/#:~:text=We%20launched%20our%20Supplementary
%20Consultation,civil%20partnership%20revokes%20a%20will