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Can a will still be valid if unsigned by witnesses?

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30th May 2018

Whether a will can still be legally valid even, when the witnesses have not signed is a historically grey area in law. The recent case of Payne v Payne came to a noteworthy conclusion when the judge ruled that the lack of witnesses’ signatures did not invalidate the will. The Law Commission is undertaking a broad reform of will law, one effect of which will offer clarity and safeguard testators’ interests.

The case

In the case of Payne v Payne, the deceased had made two wills. The first, in 1998, appointed his second wife as executor and left most of the estate to her. The second, in 2012, appointed his son and grandson as executors and left most of the estate to them. Mrs Payne alleged that the 2012 will was not properly executed and therefore not valid. However, the judge decided that neither will was valid. Among other reasons, although the witnesses had provided their names, occupations and addresses for the 1998 will, they hadn’t signed it.

The outcome

When Mrs Payne appealed, the Court of Appeal reversed the judge’s decision and found that the 1998 will was valid. The witnesses indicated that they had seen the testator add his signature but had not signed the will form because it did not provide a place for them to do so.

The Court ruled that it was enough for them to write their name with intent to validate the will.

A matter of wording

The decision may have come down to an interpretation of wording. Section 9 of the Wills Act 1837 required that witnesses should subscribe; this wording had been replaced in 1982 with a requirement that they should sign.

It would seem that this change in wording was designed to remove the archaic phraseology rather than introduce stricter requirements for witnesses. Therefore the word “sign” should be interpreted as meaning the same as “subscribe”. This provision merely requires witnesses to write their name with the understanding that this act operates as an attestation to a will.

The need for reform

Clearly an area in need of clarification; the Law Commission’s report on reforming the law of wills is expected by the end of 2018.

The overall aim is to create a more modern and improved law of wills that protects people making wills and aids clarity and certainty.

Of particular interest are the following proposals:

  • to introduce a system for assisted will making for those who have the capacity to make a will with support
  • a power for the court to dispense with will formalities where there is sufficient evidence of intention
  • a power to allow electronically executed wills or fully electronic wills to be recognised as valid through secondary legislation.

Any questions? 

It’s essential to seek qualified legal support when making, or considering contesting a will. If you have any queries, or would like to talk through specific details relating to witnessing or making a will, please do speak to a member of our highly qualified and dedicated team. Please contact us on 01273 324 041 or alternatively, email us on enquiries@griffithsmith.co.uk


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