Now, you have gone through the process of having your wishes created into a legally binding document – but is it valid?
Drafting a Will is merely the first step; the most important part to ensuring it is valid is the execution. So many times we have seen it where Wills have been drafted and then sent to the client to sign and they have never been executed, just put in the drawer for safe keeping!
So, what does Execution mean?
For a Will to be valid the original document must be signed by the testator (person making the Will) and then signed by at least two witnesses.
The witnesses do not need to know what is written in the Will, but they must physically see the testator sign the document. The testator must also physically see the witnesses sign the document.
Current Covid restrictions have presented some challenges with this but we are now able to use digital video methods as long as all parties can physically see the person put pen to paper when signing. This method is more time consuming but is currently a valid way of having a Will executed. People have also been known to sign their Will at the window, post it through the letter box and then observe the witnesses signing the other side. This is also a valid way of executing a Will as all parties can physically see the act of signing.
A witness to a Will cannot be named in the Will as a beneficiary, nor can they be the spouse of a beneficiary. If a partner signs a Will and later marries the beneficiary, then this is acceptable.
A witness may be called upon to give evidence if the Will is ever questioned so it is worth considering the age of your witnesses. Also, if both your witnesses have pre-deceased you then it is a good idea to have your Will updated.
A professionally drafted Will contains an attestation clause which reflects the testator’s circumstances; this shows that the testator’s signature has been witnessed properly. If someone is unable to sign their Will, alterations can be made to the attestation clause to reflect this. The attestation clause is not required by S9 of the Wills Act but in practice, all professionally drafted Wills include them. If there is no attestation clause in the Will the Probate Registry cannot assume due-execution and that is when they will want evidence from the witnesses.
So, as you can see, the execution of your Will is very important and critical in validating the document.
At Heritage Estate Planning, we work with you to ensure this is completed so if you would like to know more please contact us here for a no obligation consultation…….
