At Coode & Corry Solicitors we are often asked why a Will must be executed by the Testator and two witnesses at the same time, in the same place and with the same pen.
What is a valid Will?
Section 6 of the Succession Act 2006 provides that a will is not valid unless:
(a) it is in writing and signed by the testator or by some other person in the presence of and at the direction of the testator, and
(b) the signature is made or acknowledged by the testator in the presence of 2 or more witnesses present at the same time, and
(c) at least 2 of those witnesses attest and sign the will in the presence of the testator (but not necessarily in the presence of each other).
It is best practice that the Will be signed with the same pen, in order to dispel any suggestion that the Will was executed and witnessed at different times.
Who can be a witness?
Section 9 of the Succession Act 2006 provides that a person who is unable to see and attest that a testator has signed a document may not act as a witness to a will.
Section 10 of the Succession Act 2006 provides that an interested witness, i.e. a person who is a beneficiary under the Will, may be a witness to the Will in certain circumstances.
At Coode & Corry solicitors we recommend that a beneficiary does not witness the Will.
If the Will is not witnessed?
If a Will is not validly witnessed section 8 of the Succession Act 2006 provides that the Court may dispense with the formal requirements of execution of a Will if the Court is satisfied that the person intended the documents to for his or her Will.
The Court may have regard to any evidence relating to the execution of the Will, and any evidence if the testamentary intentions of the deceased person in satisfying itself as to whether the document was intended to be a persons Will.
Do it yourself Kits
Do it yourself kits are a way to save money on the costs of preparing a Will, however your beneficiaries may be the ones to pay the cost for those initial savings.
Many Wills prepared from a do it yourself kit which we have reviewed have been executed incorrectly, or contain confusing phrasing that could have resulted in assets being distributed contrary to the testator's intentions.
Same time, same place, same pen
It is always our advice that you have your Will prepared by a legal professional to ensure that your wishes are correctly spelled out in your Will.
At Coode & Corry solicitors we offer fixed Costs for the preparation of your Will. We also do home visits if required.
If you think it is time to update your Will, or make a Will for the first time please contact our office to make an appointment with Hamish Williams.