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Formalities for making a Will

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Formalities

There are formalities involved in making a Will, which a testator (a person who makes a Will) will need to consider.

There are five requirements:

  • The Will must be in writing
  • The Will must be signed
  • The testator must intend by his or her signature to create the Will
  • The testator's signature must be made or acknowledged in the presence of two witnesses
  • The witnesses must sign, or acknowledge their signature
In writing

There are no restrictions as to the materials on which, or by which, a Will may be written, or as to what language may be used. It may be handwritten or typed, or a combination (e.g. printed forms with spaces that are completed in the testator's handwriting).

Pencil or ink may be used, but where a combination of both is used, there is a presumption that the testator had not yet formed a definite intention with respect to the parts written in pencil.

While there are few restrictions, as a matter of good practice, it is strongly recommended that a Will is written in ink or typed/printed on durable (acid free) paper.

Signed

In addition to a signature, a Will may be signed by the testator by marking it in some way intended by him or her as his or her signature. Initials, a stamped signature, a mark such as a cross, an inked thumb mark, or a mark of any shape are all sufficient if intended by the testator as their signature.

This is useful for those, for example, who have a physical disability. Where, however, a testator is able to sign their name, it is strongly recommended that they do so, rather than use a mark.

A Will may be signed by some other person (including one of the witnesses) on the testator's behalf as long as they do so in the testator's presence and at his or her direction.

If a Will is more than one page long, all the pages should be attached in some way at the time it is signed; and to reduce the risk of fraud or accidental loss, it is recommended that the pages are securely attached.

The signature or mark does not have to appear at any specific part of a Will, although typically it will be placed at the end.

Intention to give effect to Will

It is not necessary that such intention appear from the Will itself, but the use of an 'attestation clause' (see further below) can assist in showing that a testator intended by his or her signature to give effect to his or her Will.

In the presence of two witnesses

The signature of the testator must be made or acknowledged by the testator in the presence of two witnesses who are present at the same time.

The witnesses need not know that the document is a Will.

For a signature to be made in the presence of the witnesses, it is sufficient that the witnesses see the testator in the act of writing his signature (even if they do not see the signature and do not know what the testator is writing).

For a signature to be acknowledged in the presence of the witnesses, there are three requirements:

  • The Will must already have been signed before acknowledgement
  • At the time of acknowledgement the witnesses must see the signature or have the opportunity of seeing it
  • The testator must acknowledge the signature by his or her words or conduct
There are restrictions on who may act as a witness. Blind people and people without mental capacity may not witness a Will.

Beneficiaries under a Will, or their spouses/civil partners, may witness a Will, but in practice should be advised not to do so, since the beneficiaries will lose all benefits under the Will if they or their spouses/civil partners do so.

Witnesses sign or acknowledge

Each witness must sign (or acknowledge their signature) in the presence of the testator, but they do not need to sign (or acknowledge) in one another's presence.

The testator must be mentally, as well as physically, present: the Will is invalid if the testator loses mental capacity before both witnesses have signed.

The testator must either see each witness sign, or have the opportunity of doing so if he or she had chosen to look or had not been blind.

Presumption of due execution

A Will may be presumed to have been properly signed where there is no evidence to suggest otherwise.

This can be particularly important where the witnesses are dead or cannot be traced.

Attestation clause

An attestation clause is a clause in a Will that explains the circumstances in which the Will was signed and witnessed.

Such a clause is not required, but is highly desirable because it can ease the process of obtaining a grant of representation.

In the absence of an attestation clause, the probate court will require an affidavit to be produced evidencing that the Will was properly signed. Further, an attestation clause raises a stronger presumption that the Will was properly signed than if no such clause is present.

Incorporation of documents

A document can be made part of a Will ('incorporated'), even though it is separate from the Will itself and has not been signed in the way that a Will is required to be signed.

There are three requirements for a document to be incorporated by reference:

  • The document must be in existence when the Will is signed. If the document comes into existence after the Will is signed, but before a codicil is signed which confirms the Will, this requirement is deemed to have been satisfied because the Will is treated as having been re-signed at the time the codicil is signed
  • The Will must refer to the document as being already in existence when the Will is signed
  • The document must be sufficiently described in the Will to enable it to be identified
An incorporated document operates as part of the Will and is subject to the ordinary rules (such as lapse and ademption) applicable to Wills.