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1. Must Be in Writing
The requirement that a valid Will must be in writing, set down in Section 78 of the Succession Act 1965, has been given a broad interpretation by the Courts. In general, provided the will is conclusive of the Testator’s final testamentary intentions, the Will can be admissible to probate irrespective of the form of the writing, the language used by the testator, and any alternative title employed by the Testator. As such, a Will may be typed, or in the Testator’s own handwriting.
2. Signed at the end by the Testator
It has been held by the Courts that a broad interpretation of a testator’s signature be applied when considering the validity of a Will. In the past, the requirement of a testator’s signature has been satisfied where the testator only used his initials; where the testator used an assumed name or where the signature was by way of a stamp or seal. Where a testator is incapable of writing, due to physical infirmity, an illegible mark in the appropriate place on a Will (with or without a guiding help from another) could constitute a valid signature. To satisfy the requirement of a valid signature, the Court must be satisfied that the mark made by the testator is intended to be his signature.
More strictly construed, however, is the requirement that a signature must come at the foot or end of the Will. The strict interpretation ensures the authenticity of the foregoing testamentary provisions and furthermore prevents any fraudulent additions to the will post signature. Section 78 (3) of the Succession Act 1965 states that a signature “is sufficient if the signature is so placed at or after, or following, or under, or beside, or opposite to the end of the will that it is apparent on the face of the will that the testator intended to give effect by the signature to the writing signed as his will”. Subsection 4 continues by stating that the following circumstances shall not affect the validity of the signature: (a) where the signature does not immediately follow the will; (b) where there is a blank space between the last word of the will and the signature; (c) where the signature is placed among the attestation clause or the testimonium clause; (d) where the signature is on a side or page or other portion of the paper or papers containing the Will where nom clause or paragraph is written above the signature; (e) where there appears to be sufficient space at the bottom of the preceding page of the Will. Most importantly, subsection (5) states that “a signature shall not be operative to give effect to any disposition or direction inserted after the signature”.
3. Testator’s Signature to be in the Presence of Two Witnesses Present at same time
Usually a court will be satisfied that this requirement has been fulfilled where the two witnesses were in close physical proximity to the testator at the time of signing the Will. Even in the absence of physical proximity, the requirement has been satisfied in the past where the witnesses had a “line of sight” of the testator at the relevant time.
Although it is preferable that the witness sign their names near where the testator has signed the Will, the fact that they are not in close proximity should not affect the validity of the will provided that the signature is made with the purpose of attesting the testator’s signature. Furthermore, while section 78 does not impose a requirement to do so, it is the practice to include an attestation clause which will give rise to the presumption in law that the Will was duly executed.
4. Will not void on account of Incompetent Witnesses
There is no provision in the Succession Act 1965 which requires a witness to be of a certain age or level of intellectual capacity before the attestation will be valid. The only requirement of competency required by the courts is that the witness is not blind, a requirement motivated by the very purpose of attestation itself, i.e. that the witness has seen the testator sign his name. Other common sense qualifications of this rule includes that the witness must be conscious at the time the testator signed the will.
5. Gifts to attesting witnesses or spouse void
For public policy reasons and as an attempt to prevent the exercise of undue influence on a testator, Section 82 of the Succession Act 1965 states that where a person attests the execution of a Will and also stands to benefit from a devise, bequest or appointment from the will then this devise, bequest or appointment shall be “utterly null and void”. This rule also extends to where it is the witness’s spouse who is the donee of the bequest.
This rule will not apply where the beneficiary does not take the gift beneficially and merely holds it on trust for another. It has also been suggested that the rule will not preclude a witnessing legatee from taking their beneficial interest where their benefit derives from a secret trust.
6. Creditor may witness Will
Notwithstanding the strict rule contained in section 82 of the 1965 Act, Section 83 states that the devises, bequests and appointments made in a will shall not be affected where a creditor (who is owed money by the testator’s estate) attests the execution of a will. Whereas the benefit precluded by section 82 derives from the provisions of the will itself, the debts envisaged by section 83 arise outside of the will and thus undue influence concerns are not an issue.
7. Executor may witness Will (but may invalidate charging clause)
Section 84 states that the validity of an attestation shall not be affected merely because one of the witnesses is also an executor. An executor’s attestation may, however, effect the charging clause in a Will; i.e. the clause in a will which provides that a professional executor, such as a solicitor, may charge and be paid for his services. Given that this charging clause is treated as a gift, the terms of section 82 may apply. Thus if a solicitor, or his spouse, attests a Will the solicitor is not permitted to receive any payment for his services apart from mere out-of-pocket expenses.
8. Subsequent Marriage of testator revokes Will unless made in contemplation of specific marriage
The policy consideration inherent in this rule ìs the assumption that once a person enters marriage they take assume obligations which should take precedence over any prior dispositions of their property. The revocation of a pre-marriage will ensures that the testator’s new family will be entitled to the rules of intestacy at the very least.
