Failure to Observe Proper Formalities
Challenges to the validity of Wills on the grounds of failure to observe proper formalities
When a Will is signed (the legal terminology for which is “executed”), for a Will to be valid, there are certain formalities that must be followed, otherwise the Will would be invalid.
The formalities for making a Will are set out in Wills Act 1837.
No Will shall be valid unless:
- the testator is over the age of 18 (save in very limited circumstances) and
- it is in writing and signed by the testator or by another person in the testator’s presence and at the testator’s direction and
- it appears that the testator intended by his signature to give effect to the Will; and
- the testator’s signature is made or acknowledged by the testator in the presence of two or more witnesses who are present at the same time; and
- each witness either signs the Will or acknowledges their signature in the presence of the testator.
It is surprising just how many Wills fail this test, and that is usually a result of the Will being prepared and/or executed at home rather than at a solicitor’s office where proper guidance is available.
If the Will is not prepared and executed in accordance with the above formalities, the Will would be rendered invalid and the testator’s Estate distributed in accordance with the terms of the last valid Will, or if none exist, then in accordance with the Rules of Intestacy which may give a different outcome than the wishes of the testator and may mean property in the estate passes to a different person or in different proportions to that intended. It is therefore imperative that the proper formalities are observed.