Legal requirements for a witness signing a will
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The law concerning the execution of a will was established almost two hundred years ago and is governed by the Wills Act 1837. If the legal requirements for a witness signing a will are not met then the will is invalid.
A case recently came before the court where a son who had been disinherited alleged that his father’s will was invalid because the legal requirements for a witness signing a will had not been followed. This is what happened:
The facts of the case
Paul Wilson did not have a good relationship with his father, Gerald Wilson. Gerald’s will failed to provide for Paul, instead naming a neighbour, Malcolm Lassman, as executor and sole beneficiary. Paul tried to bring a claim under the Inheritance Act. However the time limit for bringing the claim had expired. At the hearing of his application for an extension of time to bring his claim the validity of his father’s will was raised, with questions asked about its execution as Paul had discovered anomalies in the account given by the witnesses to the will. Paul alleged that because the legal requirements for a witness signing a will had not been followed his father’s will was invalid.
The legal requirements for signing a Will
The requirements of the Wills Act 1837, are that for a will to be valid it must:
a.) be in writing, signed by the testator or by some other person in his presence and at his direction;
b.) appear that the testator intended by his signature to give effect to the will;
c.) signed or acknowledged in the presence of two or more witnesses present at the same time; and
d.) each witness either signs or attests the Will or acknowledges his signature in the presence of the testator, but not necessarily of any other witness.
Issues in the case
Paul argued that the will was invalid due to failure to comply with the Wills Act 1837. Written evidence provided by the first witness stated that the second witness arrived by car only after the will had already been signed by the first witness.
Had this been the extent of the evidence available the will would have been declared to be invalid. However, at the hearing the first witness provided a different account of the execution of the will. He agreed with the evidence provided by the second witness that both witnesses had been approached at the same time by the Gerald and that they had been together when they witnessed the will.
In light of the disparity between the accounts provided by the witnesses, medical evidence was produced which confirmed that the first witness suffered memory loss as a result of dementia.
The court’s decision
The court concluded that the first witness initially provided untrue evidence as to the circumstances of the execution of the will and that this was most likely as a result of his medical condition. The evidence of the second witness was regarded as being unimpeachable and so was relied upon. As a result, the Court was satisfied that the legal requirements for a witness signing a will had been followed and the will was therefore valid.
Free Legal Helpline
We operate a free helpline and can offer initial guidance to anyone challenging the validity of a will on the basis that the legal requirements for a witness signing a will have not been followed or those who wish to defend such a challenge. Call us on 0808 139 1599 or email us at [email protected]