When you make a Will, it is obviously important that it is signed and attested correctly, to ensure that it becomes legally valid document. But what steps should be taken where a Testator cannot physically sign their Will, or where the Testator is blind or illiterate?
Generally, any mark made by the Testator and intended to be their signature will be effective. However, in some circumstances extra precautions should be taken in order to avoid the eventual need for Affidavit evidence by the Probate Registry, to demonstrate that the Testator knew of and perfectly understood the contents of the Will. It should be noted however, that where a signature is incomplete or appears frail, then the Probate Registry may require Affidavit evidence anyway to ensure that the Testator appreciated the significance of what they were doing.
Section 9 of the Wills Act 1837 states:
“No will shall be valid unless—
(a)it is in writing, and signed by the testator, or by some other person in his presence and by his direction; and
(b)it appears that the testator intended by his signature to give effect to the will; and
(c)the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
(d)each witness either—
(i)attests and signs the will; or
(ii)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.”
There is no requirement for a Will to have an attestation clause and the lack of one does not invalidate a Will. However, the inclusion of an attestation clause provides more certainty that the Testator intended and approved the contents of his Will and can prevent the need for the admission of further evidence by the Probate Registry in the future. For most Will writers, the inclusion of an attestation clause is standard practice.
In the event that the Testator is blind or illiterate, including an attestation clause is particularly important and amendments should be made to a standard clause to demonstrate that they cannot physically sign their Will or that they are blind or illiterate. It is essential that the Will is read out to the Testator by someone independent to ensure that they understand and approve the content and then have the attestation clause adjusted to demonstrate this. It is recommended that the witnesses are present when the Will is read out to the Testator, so that they themselves can guarantee that the Testator understands the content. It may also be advisable to record who reads the Will to the Testator, should they be required to provide evidence in the future.
In some cases, where there is absolutely no possibility that the Testator can sign their name or make any mark, then it possible to have someone sign the Will on their behalf. An example of the attestation clause that might be used in this instance is as follows:
“Signed by _______________ with the name of the Testator in his/her presence and at his direction, the Will having previously been read over to him by _________________ and the Testator having acknowledged his complete understanding and approval of the contents of the same, in our presence and then signed by us in his presence”.
It is ultimately always important to ensure that any Testator intends, approves and understands the content of their Will, however, in special circumstances such as those outlined above, there is a greater need to prove this and so extra care, precaution and steps must be taken in order to do so.