The Court of Appeal has recently considered whether a Will was validly executed according to the formalities set out in section 9 of the Wills Act 1837 even though the two witnesses had not signed the will when attesting the testator's signature. Section 9 states that each witness either attests and signs the Will or acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness) but no form of attestation shall be necessary. At first glance it appears a signature is necessary to comply with the provisions of section 9. But that was not the case in Payne v Payne (2018).
Here there were two Wills in dispute - a 1998 Will and a 2012 Will. A protracted battle then followed between the beneficiaries of each Will. The validity of the 2012 Will was dismissed without hesitation by the Court below. The 1998 Will was also dismissed and the Deceased was declared to have died intestate. The beneficiaries appealed. A witness to the 1998 Will then gave evidence before the Court of Appeal indicating that they had seen the testator add his signature and then filled in his own details of his name, address and occupation but had not signed the Will (nor did the other witness) because it did not provide a place for them to insert their signatures. The requirement that witnesses should subscribe had been replaced with a requirement that they should sign. The change in wording appeared to be designed to get rid of archaic language rather than introduce stricter formality requirements for witnesses. Therefore, the word "sign" should be interpreted as having the same meaning as "subscribe" so that the provision merely required the witnesses to write their name with the intention that the act of writing should operate as an attestation. So the fact that each witness to the 1998 Will had completed the Will attestation in their own handwriting without their actual signature did not deem it invalid. Therefore the 1998 was validly executed in accordance with the provisions of section 9. The Court of Appeal also noted the 1998 Will was printed on a form that predated amendments to section 9 that came into force in 1982 and may have in fact dated from May 1973!
Despite this decision in this case, it is still nevertheless crucial testators and witnesses to a Will should still take every precaution and sign it in accordance with the provisions of section 9 so to avoid litigation ensuing to determine whether it was valid or not.
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