There are strict rules setting out the formalities that have to be observed when a person prepares a will. These formalities can be overlooked if that person has done a DIY will – such as buying a will making kit off the shelves of the local stationer or downloading a template from the internet. Even wills prepared by a solicitor or will writer may fall foul of the rules if the individual was left to sort out the signing of the will themselves and has not been given clear guidance.
What formalities are needed for a valid will?
In order for a will to be valid:
- it must be in writing
- it must be signed by the individual who made the will, or by some other person in that individual’s presence and by their direction
- the individual must sign the will in the presence of at least two witnesses who are both present in the room with the individual at the same time
- each of the witnesses must then attest or sign the will in the presence of the individual who made the will, but not necessarily in the presence of each other
- each of the witnesses must be over the age of 18, independent, and must not benefit from the will
In most circumstances there is no requirement for a will to be dated and the lack of a date or the inclusion of a wrong date on a will does not necessarily mean the will is invalid. Also a failure to name one or more executors in a will also does not by itself invalidate it as that is something the court can remedy.
Often these requirements can be overlooked, and in particular, the signing and witnessing stage is surprisingly easy to get wrong. This is especially in the case of a homemade will. Due to our increasingly busy lives it can be hard to find a suitable witness when you need one and it can be quite common for a person to sign their will first and then ask witnesses to sign some time later. Alternatively, there may be only one witness to the will.
What should you look out for?
Even if at first glance it looks like the formalities for a valid will have been complied with, this may necessarily be the case. A common sign to watch out for is if the signatures on the will are in different colours. Whilst everyone may have simply preferred to use their own pen, it may be an indicator that the parties signed at different times. If there are any doubts about this, then it may be worth speaking to the witnesses to the will to check.
If you have any concerns that the formalities for a valid will have not been complied with, either as a named executor or potential beneficiary, then it’s important that you take legal advice promptly.