Considering all the time and expense that can go into creating a reliable will, it’s surprising that people still get the final steps wrong. But failing to stick to these seemingly simple formalities can render your will totally invalid.
Firstly, the person who is the subject of the will (the testator) must sign the handwritten, typed or printed will, to show they intended to give effect to the document. If the testator is blind, or cannot make an identifying mark, they can direct another person to sign the will, but it must be in their presence and under their direction.
Secondly, at least two people are required to witness the signature of the testator. Most people can be witnesses, except those who will receive a legacy in the will (including the testator’s spouse or civil partner) or those lacking mental capacity. Together, the witnesses must either see the signature being made or acknowledged by the testator. Each witness then signs, or acknowledges, their signature in the presence of the testator, but not necessarily in the presence of the other witnesses. As an added precaution some wills are initialled, by the testator and the witnesses, on each page.
Ideally, wills should not be altered once they have been signed and witnessed. If an alteration is required, it’s preferable to complete a codicil, which is a separate amendment, requiring the same formalities (signing and witnessing) as the will itself.
Nobody may know, until the testator dies, if the formalities have been followed correctly. When the will is submitted to the court to be approved before use (probate), it’s first checked for any irregularities. Similarly, if a person wants to contest a will, they’ll begin by painstakingly examining every single element of the will, including the formalities. In both cases, if things are not exactly right, the will is declared invalid and the rules of intestacy, usually applied when there’s no will, are used to determine how a testator’s property is divided. This is probably not what the testator would have wanted, and it wastes the time and expense that went into creating a will.
So how can you avoid infringing the formalities? With a DIY will, it’s all down to the testator to make sure the formalities are completed correctly. Will writers, who construct your will for a fee, generally issue a set of instructions for completing formalities and check the executed will after execution. An even better alternative, which prevents mistakes due to misinterpretation, is for the will writer to be present at the time of signing and witnessing, just to make sure that everything is exactly right.
The formalities seem simple enough, but as many cases in the courts and legal textbooks will bear out, it’s surprisingly easy to make a costly and irreversible mistake.
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