A simple mistake which could invalidate your will

A recent case heard in the Court of Appeal underlined the importance of taking legal advice when writing a will. Katie Gosling, senior associate in Sintons’ team of personal and family lawyers, explains more.

As a team, we help people plan for the future including putting in place lasting powers of attorney, trusts and tax planning. We also guide people through the process of making a will, helping them avoid any mistakes which could end up making the will invalid.

One very important thing we make sure all our clients know is that it’s absolutely critical that your will is signed in the correct way – and that includes you and your witnesses signing in the right order.

In which order should a will be signed?

When signing a will, ideally the person making the will should be present along with two independent witnesses. The person making the will signs it first, watched by the two witnesses. Then, each witness signs in turn, verifying that they watched the first person sign. All three people are present at all times. This is the most straightforward way of ensuring that all of the signing formalities are satisfied.

Alternatively, the person making the will could sign it alone and later acknowledge their signature in the presence of both witnesses at the same time. Acknowledging a signature means confirming that the signature is your own.

Both witnesses must sign the will (or acknowledge their signatures on the will) after seeing the person making the will sign it or acknowledge their signature. The witnesses must do this in the presence of the person making the will.

A mistake which could invalidate your will

It sounds straightforward, but any deviation from this process could result in your will being invalidated – and this is what happened in the recent case of Sangha v Sangha heard in the Court of Appeal.

The case came about because of a disagreement between various relatives of the deceased as to whether a will he made in 2007 was valid. It ended with the court ruling the will to be invalid because it was not signed correctly.

In this case, Mr Sangha signed his will with only one witness present. That first witness signed the will. The second witness then arrived. Mr Sangha acknowledged his signature with both witnesses present. The second witness signed the will. However, the first witness had signed before Mr Sangha had acknowledged his signature to both witnesses together, and the first witness did not acknowledge his own signature after that.

The steps had not been followed in the right order and the will was invalid.

A mistake like this can happen in the space of a few seconds – it can be as easy as one person popping out of the room to put the kettle on at the wrong moment.

Why it’s important to take legal advice when writing a will

The rules and the way they’re enforced might sound draconian but they’re there to help avoid any possibility of fraud, which could arise if one of the witnesses didn’t see the original signature being made.

This ruling shows how a small mistake can open the door to challenges in court and have a big effect, in this case changing who inherited a valuable estate. That’s why we always make sure our clients understand just how crucial it is to get legal advice when making a will and to follow the signing instructions exactly – or better still, come into the office and sign the will with us acting as witnesses

Working with a solicitor, rather than taking a DIY approach, can save a lot of issues and help you avoid pitfalls like this which could have huge consequences.

Katie and her colleagues work with a wide range of people including those who have assets in different countries, or who are involved in a family business, which can often add an extra layer of complexity to making a will. Find out more here.

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