Formalities of making a Will: S. 9 Wills Act 1837
There are three main formalities in making a will and it is important that these are followed. If not, then this testamentary document will not be valid and the deceased’s estate might likely be distributed under Intestacy Laws.
What are these Formalities?
While the formalities appear to be very basic, the will may be invalid if these are not followed:
The will must be in writing.
The will must either be written in ink or in pencil although it is advisable that ink be used. It is advisable to avoid using both ink and pencil because this can lead to the belief that the testator (person making the will) was still undecided about whether the part written in pencil should be a permanent part of the document or was just deliberative. This can lead to complications after the death of the testator.
Interestingly enough, the law also provides for unwritten wills known as Privileged Wills. Privileged wills are wills made informally by a testator who has privileged status. Privileged status is granted to soldiers, mariners or seamen who are in “active military service”. Situations where privileged wills may occur is when a soldier, who is mortally wounded in combat, makes a statement or oral disposition of his property to another person before he dies.
The testator must sign the document.
Any mark made by the testator on the document validates the will provided that he intended it to be his signature and that this signature is meant to execute the will. So for example, if the testator is illiterate and uses his thumbprint to as his signature to execute the will, the will is valid.
Normally, the signature must be at the end of the page of the will. There are instances however, that the signature is not at the bottom of the page but on the side of the page because there may not be enough space for the signature. There may also be situations when the testator only gives a partial signature because she/he is weak to complete the signature. The will shall still be considered valid as long as the testator intended that the mark or the signature was meant to attest that this was his last will and testament. Where the signature is not complete or where questions arise as to the way the will was executed or made, external evidence (e.g. affidavit of due execution) must be given by the attesting witnesses or the solicitor/legal executive who attended to the execution of the will.
There must be two witnesses to attest to the testator’s signature and to the correct execution of the will.
The witnesses must see the testator signing or executing the will. If even one of the two witnesses does not see the actual signing of the will, the will shall be considered invalid. It is, therefore, very important that the witnesses should be aware of and see the testator signing the document. It is not necessary for the witnesses to know the contents of the document. After attesting to and witnessing the signing of the will, the witnesses must attest the will by signing and acknowledging his signature in the presence of the testator.
Beneficiaries should not be witnesses
The chosen witnesses should not be beneficiaries to the will. If any beneficiary witnesses the signing of the will, that person will lose whatever gifts or bequests she/he is entitled to under the will (S15 Wills Act 1837).
If a beneficiary witnesses the signing of the will, it does not make the will invalid.
The witness must be capable of attesting at the time the will was executed. A minor can witness a will but not a young child since he/she will not be capable of understanding the importance of witnessing the will’s execution. A blind person will not be an appropriate witness to the will’s execution. A person who is very drunk or of an unsound mind will also not be capable of attesting to the will.