Making a Will (and getting it right)

by Kidd Rapinet on September 22, 2010

Undoubtedly one of the most important documents in your life will be your Will. It aims to deal with your wishes and wants for others and takes effect only after you have gone. In many ways your Will can be said to be a part of you which lives on after you and touches the lives of family and close friends, and indeed those who may have had no inkling that they had been chosen by you as a beneficiary.

The law in this area is very old indeed: in order to come up to scratch the way in which your Will is prepared has to meet the clear conditions laid down in the Wills Act 1837 Section 9, which states:

“No Will shall be valid unless:

  1. it is in writing, and signed by the Testator [the person making the Will] or by some other person in his presence and by his direction;
  2. it appears that the Testator intended by his signature to give effect to the Will; and
  3. or the signature is made or acknowledged by the Testator in the presence of two or more witnesses present at the same time and;
  4. each witness either:
    1. attests and signs the Will; or
    2. acknowledges his signature, in the presence of the Testator (but not necessarily in the presence of any other witness),

but no form of attestation shall be necessary.”

The aim of this article is to examine what is required to comply with the demands of paragraph 9(c).

What happens if a Testator (a man who makes his Will) or Testatrix (a woman who does so) possibly mislays their original Will but attempts to overcome the problem by acknowledging a photocopy of the original Will and their copy signature on it in the presence of at least two witnesses who are present in the room at the same time? What is the effect if the two witnesses then attest and sign the photocopy of the Will (each by signing the photocopy and inserting details of their address and occupation)? Are these arrangements enough to satisfy Section 9 (c)?

Despite many years of case law over what was a valid Will and what was not, this was still an undecided point. However, the question came before the High Court in the case of Lim v. Thomson. The point was decided by His Honour Judge Purle and judgment was handed down on Wednesday 14th October 2009.

 

The brief facts:

In this case it was agreed that the Claimant Ms. Lim had been living in a flat in Central London with an elderly gentleman Peter Reynders who died on 4th February 2007. Ms. Lim alleged that Mr. Reynders had died testate (that is leaving a Will) and that the terms of his Will meant that she was entitled to have Mr. Reynders’ flat transferred solely to her. Her claims were defended by Mr. Reynders’ nephew Dr. Alistair Thomson. On behalf of the estate Dr. Thomson contended that Mr. Reynders had died intestate (without leaving a Will) and that under the laws of intestacy Ms. Lim was entitled to nothing. There were subsidiary questions going to whether the deceased was sufficiently capable of making a Will. However the case boiled down as to whether the particular document on which Ms. Lim relied had been validly executed by Mr. Reynders.

Throughout the case the original Will was never produced. Ms. Lim instead relied upon a photocopy of the deceased’s Will. Her case was that Mr. Reynders had produced a photocopy of his original Will, and in front of two witnesses had acknowledged that the photocopy of his signature on it was his and that each of the witnesses in turn had then attested to the photocopy document by putting their names to it. If the two witnesses had correctly attested the photocopy, was Mr. Reynders’ attestation to his copy signature sufficient?

In his judgment the trial judge (properly) referred to the increasing tendency to litigate over disputed Wills and the high level of legal costs involved. He properly expressed concern over the strain and costs of Court battles and how disputes of this kind can rapidly reduce the amount available for distribution at the end of the day. In one or two cases the estate can regretfully dwindle to nothing.

In arriving at his judgment he made the following highly practical and helpful observations:

  1. where unhappily a Will turns out to be disputed, it is the case that the only party who can give the best evidence as to what was intended has passed on;
  2. a Will which on the face of it leads to a family wrangle can result in much stress and upset to those closely involved with the deceased, bringing an unhappy and unwanted dimension to bereavement; and
  3. in some cases claims can emerge which are at best opportunistic and at the worst fraudulent in the extreme.

For these reasons the Court decided that it was essential for the maker of any Will to put their original signature on the document or to attest to the original signature in front of two or more witnesses who must then attest and sign the Will in the presence of the Testator.

It follows that any attempt to acknowledgment or attest a photocopy of one’s signature on a photocopy of a Will is doomed to failure. There should be no room for difficulty or doubt over such an important document.