Dotting the ‘I’S & Crossing the ‘T’S

Many people understand that taking legal advice when making a Will helps ensure their assets are distributed in a manner that correctly reflect their wishes and minimises the chances of the homemade Will being challenged. However, it is not always understood the strict rules regarding the making of a Will and, in particular, the formalities of s9 of the Wills Act 1837, which requires:

i)A Will must be in writing
ii)A Will must be signed by the testator (the person making the Will) or signed on behalf of the testator in his presence and by his direction
iii)The testator’s signature (or acknowledgement) must be made in the presence of two witnesses, present at the same time

A professionally drafted Will contains a specific clause that explicitly deals with demonstrating that the Will has been executed in accordance with s9 of the Wills Act 1837 (the attestation clause). With the benefit of professional advice the attestation clause can be adapted to deal with the particular circumstances of the person making the Will for example where the person making the will speaks imperfect English or where the person making the will cannot sign their usual signature and instead wishes to sign by way of a mark. Adapting the attestation clause in this way helps ensure the circumstances in which the Will is signed are less likely to be queried following the death of the testator.

A surprising number of Wills prepared without legal advice have defective attestations clauses or, due lack of supervision, have not been signed correctly by the two witnesses. Where there are errors with the attestation clause problems can arise following death when the Will is “proved” at the Probate Registry. In such cases it is not uncommon to have to locate one of the witnesses and prepare further legal documents to satisfy the Probate Registry that the will was correctly executed – it can be an expensive exercise!

How Can Timms Help?

To help ensure such problems do not arise with your homemade Will contact Timms Solicitors Private Client department on 01283 214231 or email me, Matt Kelly, at m.kelly@timms-law.com.