The formalities provide a safe-guard against forgery, undue influence and also hasty or ill-considered dispositions. Formalities can be justified by the need to provide reliable evidence of a person’s intentions.
Prior to the enactment of s.9 Wills Act 1837, there were different formalities for wills relating to different types of property; thus a will could be invalid for one type of property and valid for another. The idea behind s.9 was to create one system which was easily and generally understood. S.9 has been amended by the Wills Act Amendment Act 1852 and also by the Administration of Justice Act 1982 (s.17).
Thus s.9 now applies to all testators who die on or after Jan 1 1983. There are 5 requirements
1. The will must be in writing – although there are no restrictions as to the materials on which or by which it is written. It may be handwritten or typed. No particular form of words must be used. May be in pencil or ink or a combination (although ink is preferable).
2. The will must be signed – the testator does not need to sign his name, he may just mark the will in some way. Thus initials, stamp or a mark are sufficient if intended to be the signature. This is the case even if the testator’s hand was guided by another person in making the mark. The will may also be signed by another person in the testator’s presence and by his direction – that person may be one of the witnesses. If the will is written on more than one page, all the pages must be attached in some way so as to constitute a single testamentary document; the pages should be securely attached to reduce risk of fraud or accidental loss. The signature may be anywhere on the will document, following the authority of Wood v Smith [1993] Ch. 90 and the Administration of Justice Act 1982; originally it had to have been “at the foot or end” and thus nothing written after it would have been considered.
3. The testator must intend by his signature to give effect to the will – the original s.9 did not expressly state this, it was only implied. Now, the Act requires it to APPEAR as though the testator intended his signature to give effect to the will, but no proof is required.
4. The testator’s signature must be made or acknowledged in the presence of witnesses – two witnesses must be present at the same time; this requirement has not changed since 1837. The witnesses do not need to know that the document is a will, but they must be aware that the testator is writing – being in the same room is not sufficient on its own. The requirement is also not satisfied if the witness leaves the room before the testator completes his intended signature. If the witnesses were not simultaneously present during the testator’s signing of the will, they must subsequently acknowledge it in the presence of one another. For this acknowledgement: the will must have already been signed, the witnesses must see the signature or have the opportunity of seeing it (thus if the signature is covered up this won’t count), and the testator must acknowledge the signature by words or conduct (express acknowledgement is desired but gestures will count). NB: a blind person cannot be a witness or be mentally incapable – when the requirement says the witnesses must be present, this means body and mind.
5. The witnesses must sign or acknowledge – the witnesses need not sign in the presence of each other but must sign in the presence of the testator. The testator must be physically and mentally present and must have at least had the opportunity to witness the sign if he had chosen to look – without this requirement being met before both witnesses have signed the will becomes invalid. As stated above, a marking is sufficient as a signature and the signature may be anywhere on the will. Originally s.9 required ‘attestation and subscription’ i.e. attest (witness the signature) and subscribe (sign it at the foot/end). Now the witness must either attest and sign, or acknowledge his signature.
OTHER:
Attestation – if he acknowledges his previous signature, he is not required to attest and sign; but if he signs and does not acknowledge, he must ‘attest and sign’.
Presumption of due execution – where a will appears to have been duly executed but there is no proof of due execution, it may be inferred. Harris v Knight (1890) 15 P.D. 170, 179 used the maxim “omnia praesumuntur rite esse acta” meaning of a reasonable probability, and of the proprietary in point of law of acting on such probability.
Attestation clause – s.9 says no form of attestation is necessary although is highly desirable as it facilitates grant of probate. In the absence of an attestation clause, the district judge/registrar must require evidence of due execution of the will.
