Must witnesses always sign a Will?

Peter Hastings, Rogers and Norton

In the recent case of Payne & Another v Payne [2018] EWCA Civ 985 the Court held that it may not be necessary for a witness to sign a Will in the manner in which that word is commonly understood and that it was enough for witnesses to have written their names on the Will.
This was a case that involved an appeal in contentious probate proceedings concerning an estate of a person who died in 2012.

The deceased left two Wills on his death – one dated in 2012 left most of his estate to his son from his first marriage. The other dated 1998 gifted assets to the wife from his second marriage. Disputes arose between family members from his first and second marriage.

In August 2014, the deceased’s son and grandson issued a claim form seeking a declaration that the 2012 Will was valid and could not be set aside unless fraud or a later Will was found. The wife opposed this, denying the 2012 Will had been validly executed and asking for a declaration in respect of the 1998 Will in counterclaim.

The judge in August 2015 found that neither Will should be admitted to probate and that the deceased therefore had died intestate.

The wife appealed this decision, and was granted permission to appeal and provide fresh evidence in the form of two statutory declarations made by the attesting witnesses. It is significant that in the attestation clause in the 1998 Will the two witnesses had each printed their names, addresses and occupations in capital letters in the designated places – but had failed to sign the document separately.

One of the attesting witnesses gave oral evidence supporting the wife’s case and explaining the circumstances in which the Will had been signed, that he and the other attesting witness had each been present when the deceased signed the Will.

The judge decided that by filling in their details in the specified places on the Will, the natural inference was that they intended to write their names as witnesses of the deceased’s signature. The law did not require a signature from the witnesses in the usual form of a unique and personal mark – it was enough for them to write their names with intent to validate the Will.

The wife’s appeal was allowed and the 1998 Will was pronounced in solemn form, were the will is decreed in open court to be the last will and testament after notice to all interested persons and after hearing the testimony of the attesting witnesses.

If you have concerns or issues surrounding the validity of a Will you can contact us and our experts can advise you if you have a case. We have extensive knowledge and expertise in dealing with such matters.

To ensure you make a valid Will which avoids such confusion and meets the legal requirements under section 9 of the Wills Act 1837, we suggest you contact us to make a new Will or review your current Will if your circumstances have changed. This might be through the death of a beneficiary named in the Will, divorce or separation, or substantial increase or decrease in wealth.

Our team are experienced and knowledgeable, they are available at wills@rogers-norton.co.uk, or alternatively call our Norwich office on 01603 666001 or our Attleborough office on 01953 453774.

 

 

 

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