For many people, executing their Will can be a weight lifted off their mind. However, unless care is taken to ensure that all of the formalities required for a valid Will are met, all that hard work can be in vain. Mark Abrol, Partner and Head of Contentious Probate, and Mark Terrar, an Assistant Solicitor within the team explain how Wills draftsmen can get it right and what the consequences can be if they get it wrong.
“We see this all too often. The intentions of the deceased are clear to all in the final document, but because attention was not paid at the time, the Will is not executed properly. The Will is then declared to be invalid and the deceased’s wishes unable to be honoured.” Mark Abrol comments.
Section 9 of the Wills Act 1837 provides that a Will is not valid unless:
(a) it is signed by the Testator;
(b) it appears that the Testator intended by his signature to give effect to his Will;
(c) the signature was witnessed by at least two witnesses present at the same time;
(d) each witness attests and signs the Will or acknowledges his signature in the presence of the Testator.
Mark Terrar notes “If any one of these conditions have not been met, the Will will be declared invalid. The consequences of a Will being declared invalid due to want of formalities and execution may be catastrophic for a beneficiary and they may look to alleviate their loss by blaming the person who was responsible for drafting the Will.”
How can this be avoided?
Best practice is if the draftsman is present when the Will is executed. They can best ensure that the requirements of Section 9 are complied with if they are there. Attendance at the execution is also a final opportunity for the draftsman to confirm that the Testator understands and is happy with the Will. Draftsmen should also document the meeting in which the Will is signed in a file note that summarises how the Will was executed. This note should be made contemporaneously and kept on the Will file.
Ideally, the execution of all Wills would take place in the presence of the draftsman. However, there may be various reasons why draftsmen have to rely on the Testator executing his Will without the draftsman being present. If the draftsman is not present when the Will is being executed, the draftsman should provide the Testator with very clear instructions as to how the Will needs to be signed and witnessed. These instructions must include a clear statement setting out what the consequences will be if these rules are not adhered to. This will help to protect the draftsman’s position if a claim is made on the basis that the Will was not executed properly.
The 2004 case of Humblestone v Martin Tolhurst Partnership  EWHC 151 (Ch) is a case in point. A Will was sent out to the client for signature by the solicitor who drafted the Will. The Will was witnessed but the Testator himself never signed the Will. The Will was then returned to the solicitor for safekeeping but the solicitor failed to notice that the Will had not been signed by the Testator. The firm of solicitors was held to be negligent as it was held that the firm was under a duty to check that the Will was properly executed even if not specifically asked to do so.
Mark Abrol noted “It is important not to be complacent about execution as the Section 9 formalities are non-negotiable!”
The Contentious Probate Team at The Wilkes Partnership regularly advises individuals on their ability to challenge the validity of a Will. The Team also advises practitioners on the best practice to adopt when drafting Wills. If you wish to discuss any issues relating to the drafting of a Will, please contact Mark Abrol or Mark Terrar.