Section 9 of the Wills Act 1837 sets out the requirements for a valid will in England and Wales. But what is ‘lack of due execution’? Laura Abbott of Wright Hassall explains the requirements.

What is ‘lack of due execution’ when disputing a will?

In English law, a will has to comply with certain formalities to be valid. A lack of due execution is a ground on which to dispute a will. This ground can easily be, and often is, overlooked. It is also worth considering that with the growth in DIY wills, it is more of a possibility that an error will be made due to ignorance as to the strict formal requirements. Therefore, it is important for practitioners to always consider this when contemplating a will validity challenge as it is the most straightforward of grounds to plead.

What makes a will valid?

A will must be executed in accordance with Section 9 of the Wills Act 1837 which provides that no will is valid unless:

• It is in writing, and signed by the testator, or by some other person in his presence and by his direction.
• It appears that the testator intended by his signature to give effect to the will.
• The signature is made or acknowledged by the testator in the presence of two or more witnesses present at the time.
• Each witness either:
  • - attests and signs the will; or
  • - acknowledges his signature, in the presence of the testator (but not normally in the presence of any other witnesses), but no form of attestation shall be necessary.

A few key points to note from this:

• A will can be handwritten or typed, and any form of material will suffice.
• A testator’s signature can be in any form, eg a scrawl or initial. Even a thumb print has sufficed in the past (Re Finn [1935] 52 TLR 153), as did the words ‘your loving mother’ in the Estate of Cook [1960] 1 WLR 353.
• Both witnesses should be present at the time when the testator signs or acknowledges his signature, but they do not need to sign in each other’s presence. If the testator signs his will in the presence of two witnesses and one of the witnesses leaves without having signed the will then the other witness can still attest the will in the testator’s presence and the testator can then get the first witness to sign the will in his presence at a later stage. The will then be valid.
• A beneficiary (or a beneficiary’s spouse) can act as a witness but the gift to them will be void (S15 Wills Act 1837).
• The witnesses are not required to read the will. The role of the witnesses is to confirm that the testator’s signature on the document is indeed his signature. It therefore does not matter if the witnesses do not know what document it is that they are witnessing.
• A will does not have to be dated to be valid, however it is important that it is to ensure it is the last will of the deceased.
• There is a presumption of due execution if, on the face of it, a will is properly executed.

How do ‘lack of due execution’ will disputes work in practice?

To contest a will on the grounds of lack of due execution, ‘the strongest evidence’ is required (Wright v Rogers [1869] LR 1 PD 678). What this will amount to will vary from case to case:

• In Channon v Perkins [2006], although both witnesses were sure they had not signed a document in the testator’s presence, the court characterised the witnesses’ evidence as a mere hazy failure to recollect and this was not enough.
• In Murrin v Matthews [2006], the presumption was however rebutted because although the will was signed by two witnesses, they could not be traced and so there was no evidence by the witnesses as to its execution.
• In Marley v Rawlings [2014] UKSC 2, the Supreme Court was asked if a person mistakenly executes a will meant for another person (in this case wife signed husband’s and husband signed wife’s), does that document comply with the formalities required under section 9? The decision was yes on the basis that when they signed, they intended to give effect to it as their will; and they went on to hold it capable of rectification to be able to give effect to the testamentary intentions.
• In Re Whelen [2015] EWHC 3301, a will purported to have been made by the Deceased, Dorothy, leaving her estate to her lifelong friend, Hazel, was found to be invalid on the basis the witnesses to it were employees of Hazel and had no knowledge of ever even having met Dorothy. They gave evidence that they acted as witnesses to what they thought was Hazel’s will but it turned out it was Dorothy’s. They witnessed Hazel sign it, not Dorothy, and Dorothy was not present. 
• The most recent case on formalities was the much-publicised case of Burgess v Penny & Anr. [2019] EWHC 2034 (Ch). In this case, the deceased, Freda Burgess, had three children and her last will was prepared by her son and was in his favour. His sisters challenged its validity. The will appeared to have been duly executed on its face but one of the witnesses gave an emphatic account that he had not seen the deceased or the other witness sign the will. Accordingly, the presumption of due execution was rebutted, and the will was found to be invalid.

About the author

Laura Abbott is an Associate in the contentious probate team at Wright Hassall, and is a member of the Society of Trust and Estate Practitioners (STEP).

See also

What are the effects of marriage and divorce on wills?

Is there an intestacy? How to tell if a will is fraudulent

Find out more

Wills Act 1837 (Legislation)

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Publication date

12 October 2019