Due Execution

What is Due Execution?

Due execution refers to the formal legal process that must be followed for a will to be considered valid under the law. It encompasses the specific statutory requirements regarding the signing, witnessing, and attestation of the will. Failure to adhere to these requirements can result in the will being declared invalid, thereby disrupting the testator’s intended distribution of their estate.

Importance of Due Execution

Understanding and ensuring due execution is critical for several reasons:

1. Legal Validity: It ensures that the will is legally recognised and enforceable.
2. Reduction of Disputes: Proper execution minimises the risk of disputes and challenges from beneficiaries or other interested parties.
3. Clarity of Intent: It provides clear evidence of the testator’s intentions, helping to ensure their wishes are carried out.
4. Protection for Beneficiaries: It protects the rights of beneficiaries by ensuring that the estate is distributed according to the testator’s wishes.

Legal Framework in the UK

The legal framework governing the due execution of wills in the UK is primarily outlined in the Wills Act 1837 and subsequent case law. These legal principles provide the foundation for understanding and ensuring the due execution of wills.

Wills Act 1837: The Wills Act 1837 is the cornerstone of UK legislation regarding the creation and execution of wills. It sets out the formal requirements for a will to be valid, including the testator’s signature, the presence of witnesses, and other essential elements.

Key Requirements of the Wills Act 1837:

• Written Form: The will must be in writing.
• Signature of the Testator: The testator must sign the will or acknowledge their signature in the presence of two or more witnesses.
• Witnesses: The testator must sign the will in the presence of two or more witnesses present at the same time, who must then sign the will in the presence of the testator.
• Capacity and Intention: The testator must have the mental capacity to make the will and intend for the document to be their last will and testament.

Practical Steps for Ensuring Due Execution

To ensure due execution, consider the following practical steps:

1. Prepare the Will in Writing: Ensure the will is clearly and accurately written, detailing the distribution of assets and the appointment of executors.
2. Arrange for Witnesses: Choose two or more independent witnesses who are not beneficiaries of the will. Witnesses must be present when the testator signs the will.
3. Sign the Will: The testator must sign the will in the presence of the witnesses, or acknowledge their signature if the will has already been signed.
4. Witness Signatures: After the testator has signed, the witnesses must sign the will in the testator’s presence. Their signatures confirm that they witnessed the testator’s signing.
5. Check for Legal Compliance: Review the will to ensure that all legal requirements are met and there are no ambiguities or errors.

Roles and Responsibilities of Executors and Solicitors

Executors and solicitors play critical roles in ensuring the due execution of a will:

Executors:

• Verify Validity: Executors must verify that the will was duly executed according to legal requirements.
• Administer the Estate: Executors should administer the estate according to the valid will, ensuring that the testator’s wishes are honoured.
• Resolve Disputes: Executors may need to handle disputes arising from questions about the due execution of the will.

Solicitors:

• Provide Legal Advice: Solicitors can advise on the legal requirements for due execution and assist in drafting the will.
• Oversee the Signing Process: Solicitors can oversee the signing and witnessing process to ensure that all legal formalities are observed.
• Document and Store the Will: Solicitors can document the signing process and store the original will securely to prevent loss or tampering.

Case Studies

To further illustrate the practical application and importance of due execution, let’s consider two detailed case studies:

Properly Executed Will

Mrs. Elizabeth Green created a will to distribute her estate among her children and grandchildren. She consulted with a solicitor to ensure her will would be legally valid. The solicitor drafted the will according to Mrs. Green’s instructions and arranged for the signing process to take place in the solicitor’s office.

On the day of the signing, Mrs. Green signed the will in the presence of two independent witnesses, who were colleagues of the solicitor and not beneficiaries under the will. Both witnesses signed the will in the presence of Mrs. Green and each other. The solicitor documented the process and stored the original will securely.

When Mrs. Green passed away, the will was found to be properly executed, and her estate was distributed according to her wishes without any legal challenges or disputes.

Disputed Execution

Mr. John Smith drafted his will using an online template without seeking legal advice. He signed the will in the presence of his two neighbours, who were also beneficiaries. Unfortunately, Mr. Smith did not understand that beneficiaries should not act as witnesses, as it could invalidate the will or the gifts to them.

After Mr. Smith’s death, his estranged daughter contested his will, arguing that it was not valid due to improper witnessing. The case went to court, where the judge ruled that the gifts to the neighbours were invalid because they had witnessed the will, violating the legal requirement for independent witnesses. As a result, the estate was distributed according to the rules of intestacy, and Mr. Smith’s intended gifts to his neighbours were not honoured.

Common Challenges and Solutions

Several challenges can arise in ensuring the due execution of a will. Consider the following solutions to address these challenges:

1. Ambiguous Language: Ambiguities in the will’s language can lead to disputes. To mitigate this, use clear and precise language when drafting the will.
2. Inadequate Witnessing: Failure to meet the witnessing requirements can invalidate the will. Ensure that witnesses are independent and present at the same time during the signing.
3. Lack of Legal Advice: Drafting a will without legal advice can result in errors. Consult a solicitor to ensure that the will complies with all legal requirements.

Preventing Disputes Over Due Execution

Preventing disputes over due execution requires careful planning and adherence to legal formalities. Consider the following best practices:

1. Use Professional Services: Engage a solicitor to draft and oversee the execution of the will.
2. Educate Executors and Beneficiaries: Ensure that executors and beneficiaries understand the importance of due execution and the legal requirements.
3. Maintain Detailed Records: Keep detailed records of the will’s execution, including the names and addresses of witnesses and the date and location of the signing.
4. Regular Reviews: Regularly review and update the will to reflect any changes in circumstances or legal requirements.

Legal Implications and Dispute Resolution

Understanding the legal implications and options for dispute resolution is essential for handling issues related to due execution:

1. Court Proceedings: If disputes over due execution cannot be resolved amicably, court proceedings may be necessary. The court will examine the evidence and apply legal principles to determine the validity of the will.
2. Mediation: Mediation can be a useful tool for resolving disputes without the need for litigation. It allows parties to reach a mutually agreeable solution with the help of a neutral mediator.
3. Legal Costs: It is important to consider the potential legal costs associated with disputes. Seeking early legal advice can help mitigate these costs and facilitate a smoother resolution process.

Conclusion

Due execution is a fundamental aspect of probate and estate administration, ensuring that a will is legally valid and enforceable. By understanding the legal framework, practical steps, roles and responsibilities of executors and solicitors, and potential challenges, individuals can ensure that their wills are executed properly and their wishes are honoured.

At DLS Solicitors, we are dedicated to providing comprehensive legal advice and support to ensure that your estate planning and administration are carried out smoothly and in accordance with the law. Our team of experienced solicitors is here to guide you through the complexities of due execution and other probate-related matters, ensuring peace of mind for you and your loved ones.