A will is an important document which can be invalidated by a simple, innocent mistake regarding its signing formalities, known in the legal profession as ‘execution’.
In this article, we look at some of the issues to be aware of when signing and witnessing a will and how to ensure that your testamentary wishes are fulfiled.
Signing formalities
Firstly, sign a will. The testator or testatrix (the person who is making the will) needs to sign first, using his or her normal signature; there is no requirement for the testator/testatrix to sign with their full name. This is a common misconception and one which can lead to problems post-death as family members dispute the signature as not being the ‘normal’ signature of the deceased. Once signed, the Testator/Testatrix dates the will.
When signing and dating the will, the testator/testatrix must be joined by two independent, adult witnesses, both of whom must be present throughout the entire process. The law has placed certain limitations on who can be a witness.
Choosing who to witness your will
The general rule is that a witness cannot benefit from a will. If a witness is also a beneficiary of the will in question, the result is that while the will remains valid, the gift to the witness fails, resulting in a selected beneficiary receiving nothing.
Generally, we recommend excluding family members, including spouses, from acting as witnesses, thereby avoiding the possibility of a gift to any one of them failing. An executor (the person who will administer the estate in accordance with the will) may witness a will, but only if he or she is not also a beneficiary. Best practice dictates that another person should sign.
Professional executors (such as solicitors or trust corporations) should also be careful because if the will contains a charging clause for professional services and the solicitor or trust corporation then witnesses the will, then they could also be a witness benefiting from a will, which may void the charging clause. Though there are exclusions in law for professional trustees, they are narrow and the problem can be easily sidestepped by having an independent person witness the will.
Blind people are also excluded from witnessing wills, as it is characterised as a “visual act”. Where a blind person wishes to make a will, however, this can be accommodated for using a particular “attestation clause”.
If you are unsure who should witness your will or wish to ask if your will has been properly witnessed, do get in touch and speak to one of our experts, who will be happy to help you.
What are attestation clauses and how do properly sign a will?
An attestation clause is a clause which confirms the will was signed by the testator or testatrix in the presence of the witnesses and vice versa. Anyone who wishes to contest a properly set out attestation clause in a will which otherwise appears to be validly signed would require strong evidence to prove the signing or witnessing of the will was, in any way, defective.
An attestation clause should be adjusted for special circumstances. Specific attestation clauses are used for testators who are blind, unable to read or understand English, or who are physically incapable of signing a will. Special attestation clauses should also be used if witnesses are remotely witnessing a will.
Where must the witnesses be when the will is signed?
Best practice dictates that the Testator and his/her witnesses should be in the same room and watching each other physically sign the will. The courts have seen many cases establishing the limits of what it means to “witness” a will but physically being present and watching the signatures of the respective parties is the best way to ensure that the will is properly witnessed.
Remote witnessing of a will
COVID-19 introduced new challenges for those who needed their wills witnessed but were unable to have people physically present to witness the signature. COVID-19 remote witnessing protocols were implemented, which have recently been extended to January 31, 2024.
These protocols are complex, and most practitioners would not recommend relying on them. They are untested in court and are difficult to follow, with many potential pitfalls. Indeed, the Ministry of Justice recommends that remote witnessing only be used where physical witnessing is impossible.
First, the testator and the witnesses must have clear sight of one another using a video calling service. Each must be on the live call at the same time. The testator should show the will on the screen to the witnesses. The testator should formally state that they are signing their will by their own free will before witnesses who the testator verbally acknowledges are remotely witnessing the will (ideally, the attestation clause should also acknowledge the remote witnessing).
The camera should then be aimed in such a manner that the witnesses can clearly see the testator signing the will; the witnesses need to see the signature being drawn onto the will and not just the torso and head of the testator as he or she signs the will “off camera.”.
Once the testator has signed the will, the will must then be sent to the witnesses, and the process is effectively repeated. A new video conference is convened where the will is once again shown to the testator and the other witness, and the witness signs in full view and in the in the presence of the others. Once the final witness has received and signed the will following that same procedure, only at that point is the will properly signed and witnessed.
Each video conference should be recorded, and as little time as possible should pass between each remote witnessing event to protect against any concerns or unforeseen issues.
The above is merely a guide and does not constitute legal advice on the best manner in which remote witnessing should be done. We would be happy to advise you on the correct procedure to follow should you require that your will be remotely witnessed. If you made a will during lockdown relying on COVID-19 remote witnessing protocols and you are concerned that this may not have been done properly, do get in touch and ask to speak to someone in our Wills Team.
When should you make your will?
If you haven’t made a will or are thinking of making one but are concerned about how best to go about it, then feel free to get in touch and speak to our specialist wills lawyers.
