Witnessing a Will

Payne & Anor. v. Payne

[2018] EWCA Civ. 985

A recent decision in the Court of Appeal (Civil Division) has blown a breeze of clarity on a question which had hitherto been unanswered for over 180 years : what must a Testator do to ensure that their Will is properly witnessed?

Some background first of all:

1. The Wills Act 1837 : this continues today to be a classic statement of the formalities to follow in order to make a valid Will.   Section 9 stated thus:

“No Will shall be valid unless it shall be in writing and .. signed .. by the Testator .. and such signature shall be made .. in the presence of two or more witnesses [who] shall attest and shall subscribe the Will in the presence of the Testator”

• The Administration of Justice Act 1982 : Section 17 of the 1982 Act effectively replaced the former Section 9 and applied to all Wills from 1 January 1983 onwards:

“No Will shall be valid unless .. it is in writing and signed by the Testator .. in the presence of two or more witnesses [and] each witness either

• attests and signs the Will or
• acknowledges his signature, in the presence of the Testator”.

• Background : The deceased John Henry Payne [“the Testator”] had made two Wills:

[1] One in 1998.   Under this Will the deceased’s second wife (Appellant) Mrs. Kim Payne (“Mrs. P”) was the Executor.   Mrs. P was made the majority beneficiary.

[2]  Further Will made in 2012.  Under this Will the Claimants, the deceased’s son and grandson, were the main beneficiaries.

Mrs. P. sought to argue that the 1998 Will was valid – and that made in 2012 invalid because it had not been properly executed.  

• Judgment : first instance : In the Lower Court the deceased’s son and grandson sought a Declaration in relation to the 2012 Will.   A Declaration is a statement of binding legal force.   They asked the Court to grant proof of the 2012 Will in solemn form : if such a Declaration were granted, this would mean that the 2012 Will could not be impugned unless fraud were shown or a later Will discovered.

The Judge went on to conclude that neither the 2012 Will nor that made in 1998 were valid.   He decided that the deceased’s estate should be administered as if the deceased had died Intestate.

• The 1998 Will : The Court noted that witnesses to the 1998 Will had given their names, occupations and addresses in block capitals but that neither had actually “signed” the Will – in the sense in which that term is generally understood namely, applying a unique or personal mark.

• The Court of Appeal : Mrs. P appealed to the Court of Appeal.   They upheld the 1998 Will.   In its Judgment the Court held that, as a matter of law, what is understood by a person’s normal signature (a mark personal or unique to them) is not in fact required in order validly to witness the Will.   It was sufficient that the witness’ name be written with an intention to validate it.  

•  Judgment of the Court of Appeal : In his Leading Judgment, delivered by Lord Justice Henderson on 17 May 2018, his Lordship noted that the new Section 9 required each witness to attest and to sign the Will – whereas in the original version, when it came to witnesses, the requirement was that they should “attest and .. subscribe”.

The Court of Appeal decided that there was not intended to be any change to substance or meaning – but rather, the purpose had been to employ the modern English word “sign” rather than the more archaic “subscribe”.  

• Summary : The following comprises a summary of the relevant law today and practice on the witnessing of Wills today:

[1]  the requirements for 1983, for an attesting witness to sign the Will should be treated as having the same meaning as the earlier term “subscribe”.

[2]  In practical terms a “signature” is not essential : in the sense of an identifiable or unique personal mark.    It will be sufficient if the witness merely writes their name, providing that in so doing they have the intention to validate the Will. 

• Policy and evidence : The Court of Appeal emphasised the strong public interest considerations in trying to ensure that Wills were upheld and that the wishes of a Testator were given full effect.   Moreover, it was said that, where a Will is now contested, it is established law that at least one attesting witness has to be called to give evidence in a case over a disputed Will.

[Lord Justice Flaux concurred.]

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This Article contains views founded upon the interpretation of current legal practice and procedure.  However, each case is fact-specific and much may turn upon the individual nature of the case or changes in the law or differing judicial interpretations.