Will Not Signed and Verbal Wills (or how to sign a Will)

How to sign a Will and avoid problems.

This page started from a question about an unsigned Will, but has been expanded to include the update guidance on how to sign a Will in England and Wales. It is simple, but people often get it wrong and disinherit people accidentally!  You may also wish to look at the best way to store a Will.

Will Not Signed before death: is it valid?

Last Will not signed
Have you signed your Last Will and testament?

My mother-in-law has recently died just 4 months after my step-father-in-law. They had re-written a will to include my son but the will was not signed, and on clearing the house my husband and his sister have discovered a  Will which was written back in 1999 which was signed which includes my nephew and niece but, because my son was not born does not include him. Please can you advise whether the signed Will will take precedence over the unsigned one? I know this might seem as though I’m being selfish but I’m just looking out for the best interests of my son.

Any help you could offer would be very gratefully received.

Many thanks in advance.

(I thought I would tag on an article about verbal Wills too, below this section about what happens if they are unsigned or signed incorrectly).

Will Not Signed – What Happens?

It may well be that the estate is then going to be distributed under the Rules of Intestacy but read on….

This is a reply based on the usual circumstances which are similar to this case.  You would be shocked to find out how many people have “made” a Will, paid good money for it but just never signed it.  Is YOUR Last Will properly signed? There are all sorts of other rules about signing Wills in England and Wales which can mean they are not valid too. Back to the answer:

It is possible that the Will you have found is actually just a copy, and the original is actually stored by the firm who wrote it or elsewhere, so have a look at our page on how to find a lost Will.

If a signed Will really can’t be found and you have done everything possible to find it, and can prove it, then the Rules of Intestacy will apply, subject to any claims under the Provision for Family and Dependants legislation. There are certain circumstances where people “on active service” can make verbal provisions that are effective.

I am afraid will not signed is waste paper, so the 1999 will stands. But do be aware that if a later signed Will is subsequently found, the executors could have paid out the wrong people!

That is why we recommend www.WillCustodian.co.uk Peace of Mind Service, to make sure that things like this don’t happen. (Disclaimer: it is a sister company and is not regulated by the Solicitors Regulation Authority.)

If everyone agrees, the money could be split differently, but (legally) this would need a Deed of Variation and Court approval if any of the beneficiaries (people who inherit) who will lose out are under 18.  So it is a bit complicated!

Many Wills are in effect not signed as the signing process has not been carried out properly.  This means they may be fully or partly invalid.

How to sign a Will correctly:

a) Signed by the person whose Will it is in front of TWO independent witnesses who in their turn and in the presence of each other and the testator, then sign and add their names and addresses.  It IS possible to do it slightly differently, but much better to do it in the best possible way.  Between 31st January 2020 and 31st January 2024 video witnessing of Wills is potentially permitted as long as strict rules are followed.  But on with how to sign a will correctly:

b) The witnesses can be married to each other.

c) Witnesses who are not independent could give credibility to a future claim that it was made under “undue influence”.

d) Witnesses should be traceable – gentlemen of the road are not ideal!

e) Witnesses should be sober, over 18, of sound mind and NOT blind – which isn’t discrimination, it is just that they can’t see the testator or other witness sign or indeed, what they are signing!

f)  A witness CANNOT inherit under it.

In unusual circumstances, it is possible for a third party to sign on behalf of the testator (person whose Will it is): the Wills Act says that a testator may either sign the Will himself or direct that another person may sign on his behalf. If the testator does direct someone else to sign on his behalf and the other formalities are observed the Will is “signed” by the testator so far as the law is concerned and the Will is valid. But inevitably, this is an extra layer of complexity best avoided, but there are circumstances where this may be the only way for a testator “of sound mind” to sign it.

Hope you are well organised yourself – have a look at our Legal Planning Guides

Verbal Wills – clearly, different from a Will not signed!

The majority of this rare breed is made by servicemen and women on active duty where there is the danger of immediate death. But some other circumstances may permit a gift of “Donation mortis causa” – a gift given by a person close to death – of that more below.

Verbal Wills on Active Service.

Most people can’t make a verbal one as the Wills Act 1837 lays down strict formalities. To be valid, it has to be in writing and signed by the testator in the presence of two witnesses who confirm the signature.

However, Section 11 of the Wills Act 1837 allows soldiers, mariners or sailors in “actual military service” to make a verbal or ‘nuncupative’ Will. It was later extended in 1918 to cover naval and marine forces who were not only at sea but engaged on land.

But what about – for example – deaths of soldiers during the troubles in Northern Ireland? That was considered to be active military service, even though it was not technically a war which was the original intention of the legislation. if they were in imminent danger. There must be evidence from surviving witnesses that there was an intention that the words have a testamentary effect, that is, the effect of disposing of the testator’s assets to the identified beneficiary.

‘Donatio mortis causa’

These are a bit of a sticky wicket, as any dispute is likely to centre around whether the deceased actually had mental capacity at the time. Or whether there was undue influence as they were in a weakened state, probably on serious drugs, and fearful of death. Strong evidence will be needed to protect against dispute,

Lord Justice Jackson set out the three requirements as follows, that:Deathbed Wills

  • The donor contemplates their impending death.
  • The donor makes a gift which will only take effect if and when this contemplated death occurs. Until then, the donor has the right to revoke the gift.
  • The donor delivers dominion over the subject matter of the gift to the recipient.

It is obvious that deathbed gifts should be avoided in favour of a formal valid will, ideally where the capacity of the individual can be checked by a professional. There is usually sufficient time to make a conventional will, which should be a considered and regularly reviewed process, not a last-minute dash that may not be fully considered.

 

Verbal Wills.

 

 

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