Witnessing a Will – signing on the dotted line?

Many clients who have set up Wills with websters, will be aware of the various legal requirements to ensure that a valid Will has been created. The most fundamental is set out in section 9 Wills Act 1837 – namely no Will shall be valid unless the testator’s signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time. Each witness must then attest and sign the Will.

But what does sign actually mean? Is an actual signature required? This was an issue determined by the court in the recent case of Payne & Another v Payne [2018] EWCA Civ 985.

The deceased made two Wills, one in 1998 and the other in 2012.

The 1998 Will appointed his second wife as executor, and left most of his estate to her. The deceased had written his name in the space reserved for his signature. Underneath his name were spaces for two witnesses to each write their name, address and occupation. Both witnesses had provided that information in capital letters. There was no separate designated space for each witness to place their signature. Consequently, there were no witness signatures in the sense in which the word is commonly used and understood.

The 2012 Will appointed the deceased’s son from his first marriage and his grandson as executors, and left most of the estate to them. After the deceased died, his second wife argued that the 2012 hadn’t been validly executed.

The judge at first instance decided that neither Wills were valid. In relation to the 2012 Will, the judge found the son and grandsons to be unreliable witnesses, and as such any presumption of due execution that might otherwise have arisen was displaced. The judge also concluded that the 1998 Will had not been properly attested, and as such the Will was invalid and the deceased was to be treated as having died intestate.

On appeal the court looked at the attestation of the 1998 Will and specifically at the provisions of s 9 of the Wills Act 1837. The original legislation required witnesses to ‘attest and subscribe’ a Will in the presence of the testator. It did not use the verb ‘sign’ except in relation to the testator’s signature. When s 9 was substituted by the Administration of Justice Act 1982, the word ‘subscribe’ was replaced with ‘sign’. This had not been intended as a change of substance, but merely an adoption of a more modern term. The requirement to ‘sign’ the Will did not mean that a ‘signature’ was required in the sense of an identifiable and unique personal mark. Therefore, the court held that it was sufficient for witnesses to merely write their name with the intention that the act of writing it should operate as an attestation.

Despite the ruling in this case, for the sake of certainty we will always recommend to our clients that both the person setting up their Will and their two witnesses should sign.