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Testamentary Formalities

بِسۡمِ اللهِ الرَّحۡمٰنِ الرَّحِيۡمِ

One of the most common inquiries I receive from individuals considering drafting their Last Will and Testament is, "Do I need a solicitor to write my Will?" The straightforward response to this query is, "No, as long as you adhere to the testamentary formalities prescribed by your jurisdiction." This assertion holds true particularly for residents of England and Wales, as well as many other legal jurisdictions. However, if your estate is anticipated to surpass the Nil Rate Band, it is advisable to seek guidance from a tax advisor or solicitor well-versed in trusts and estate planning.

This article aims to elucidate the testamentary formalities observed in numerous common law countries for informative purposes.

Testamentary formalities denote the procedural requirements mandated by law for the disposal of property through a testamentary instrument. While the customary legal document employed for this purpose is the Last Will and Testament, the utilization of alternative instruments, known as Will substitutes, is on the rise due to the benefits they afford.

An improperly signed and witnessed Will is deemed invalid. The testamentary formalities, encompassing the signing and witnessing procedures, must conform to the legal standards of the respective jurisdiction for a Will to hold legal validity. Once the testator has completed the signing and witnessing process, the Will becomes legally binding.


The objectives of testamentary formalities

1. Imparting upon the testator the significance of their actions.
2. Serving an evidentiary function regarding the intentions of the testator.
3. Offering protection against fraudulent practices.
4. Directing the testator's wishes into a standardized format interpretable by the courts of law.


Testamentary formalities in Islāmic law:

Islāmic law comprises various schools of jurisprudence (fiqh), each with distinct interpretations and practices. Unlike in common law systems, the nomination of an heir is prohibited, and individuals cannot be disinherited through legal means. Testamentary dispositions are limited to bequests, as elaborated below. There exists disagreement regarding whether witness testimony is a prerequisite for a valid Will or merely serves as evidence of its existence.

All Islāmic schools of fiqh acknowledge the principle of informality, wherein no specific method is mandated for the formal validity of a Will. In Islām, a Will may be in written form, conveyed orally, or expressed through gestures, provided the testator's intent is evident.

The predominant view among Islāmic scholars is that a written Will does not necessitate the testator's signature. However, if a third party drafts the Will, the identity of the testator must be ascertainable.

Some Islāmic scholars recognize the concept of a secret Will, subject to certain stipulations. In such cases, witnesses need not be privy to the Will's contents; their role is solely to affirm that the document presented constitutes a Will. However, holographic Wills are deemed invalid in this context.


Key points

i. Clarity of the testator's intent is paramount.
ii. Certain scholars advocate for an execution note in written Wills to indicate their enforceability.
iii. While some scholars regard witness attestation as a recommended practice rather than a compulsory requirement, others consider it essential solely for evidential purposes. The Quranic verse 5:106 is interpreted variably in this regard.
iv. According to Hanafi fiqh, a handwritten Will must be attested by two witnesses for validity.
v. Muslim individuals residing in non-Muslim jurisdictions must adhere to the testamentary formalities prescribed by their local laws to ensure the validity of their Wills within their country of residence.


England & Wales

The Wills Act of 1837 (England and Wales), which abolished the distinction between testaments of personal property and Wills of real property, with its amendment in 1852, has five requirements as per section 9:

is will legal

1. The Will must be in writing.
2. The Will must be signed (by the testator or by some other person in his presence and by his direction). The signature should be at the end of the Will. The substituted section 9 applicable to death after 1st January 1983 does not insist the signature has to be at the end of the Will.
3. The testator intended by his signature to give effect to the Will.
4. The testator’s signature must be made or acknowledged in the presence of two witnesses present at the same time.
5. Each witness either attests or signs the Will or acknowledges his signature “in the presence of the testator” (but not necessarily in the presence of any other witness), but no form of attestation shall be necessary.

- Witnesses must be over the age of 18 years.
- Section 15 of the Wills Act 1837 deprives any witness and his/her spouse of any benefit under the Will which he/she has witnessed.
- An English Will need not be dated, but it is obviously much better to do so, in case of a subsequent Will, to determine which is the latter and the date may affect the interpretation of the Will itself.



Historically, the English Wills Act 1837 was adopted into various Australian colonies by the Imperial Act Adoption Acts from 1839-1842.

Each of the eight jurisdictions has its own statute for making a valid Will, but they are substantively the same except for the Australian Capital Territory’s Wills Act. The New South Wales Succession Act 2006, section 6 which applies to testamentary instruments stipulates:

1. A Will is not valid unless:
  a. it is in writing and signed by the testator or by some other person in the presence of and direction of the testator, and
  b. the signature is made or acknowledged by the testator in the presence of 2 or more witnesses present at the same time, and
  c. at least 2 of those witnesses attest and sign the Will in the presence of the testator (but not necessarily in the presence of each other).
2. The signature of the testator must be made with the intention of executing the Will, but it is not essential that the signature be at the foot of the Will.
3. It is not essential for a Will to have an attestation clause.

The witnessing requirements are the same as in the 1837 Act. The testator’s signature is not a requirement to be at the end of the Will, except for the Australian Capital Territory.

There is a difference in rules between the territories on the relevant intention when someone other than the testator signs the Will. These differences determine whether or not the signatory needs to know the nature of the document being signed.

Witnesses must be present at the same time and witness the same act. The witnesses do not need to know what they are witnessing is a Will, but they must be able to see and attest the signature. Most jurisdictions require the witnesses to sign in the testator’s presence.

The rule that witnesses and their spouses cannot benefit from a Will has been changed; South Australia, Victoria, and the Australian Capital Territory have abandoned the rule altogether. In the other territories, the rule applies only to the witnesses, not to their spouses. Even in the case of witnesses, a bequest in favour of a witness can be saved.


New Zealand

The history and development of testamentary formalities in New Zealand has been closely related to that of Australia.

The Wills Act 2007, section 11 stipulates:

1. A Will must be in writing.
2. A Will must be signed and witnessed as described in subsections 3 and 4 below.
3. The testator must:
  a. sign the document,
  b. acknowledge that a person directed by the testator signed the document in the testator’s presence,
4. At least two witnesses must
  a. be together in the testator’s presence when the testator complies with subsection (iii),
  b. each state on the document, in the testator’s presence, that the witness was present when the testator complied with subsection (iii); and
  c. each sign the document in the testator’s presence.

The Will must be signed in the presence of witnesses. There is no requirement mentioned in section 11 that the testator by signing the Will intends to give effect to the Will; the requirement is implied.

Two witnesses must be present when the testator signs the Will, and each witness must then attest to the Will. Each witness must state on the Will that they were present when the testator signed the Will.

In both Australia and New Zealand, the court has the dispensing power to admit documents to probate that do not satisfy the formal requirements for the execution of a Will.


South Africa

The South African succession law is a mixture of legal systems introduced by the Dutch-based on the Dutch-Roman law and the English common law. Uniformity was only achieved in 1953 with the promulgation of the Wills Act followed by a substantial amendment in 1992 with the Law of Succession Amendment Act.

The Succession Wills 1953 (amended), section 2(1)(a) provides:
"… no Will executed on or after the first day of January 1954, shall be valid unless:
1. The Will is signed at the end thereof by the testator or by some other person in his presence and by his discretion; and
2. Such signature is made by the testator or by such other person or is acknowledged by the testator and, if made by such other person, also by such other person, in the presence of two or more competent witnesses present at the same time; and
3. Such witnesses attest and sign the Will in the presence of the testator and of each other and, if the Will is signed by such other person, in the presence also of such other person; and
4. If the Will consists of more than one page, each page other than the page on which it ends, is also signed by the testator or by such person anywhere on the page; and
5. If the Will is signed by the testator by the marking of a mark or by some other person in the presence and by the direction of the testator, a commissioner of oaths certifies that he has satisfied himself as to the identity of the testator and that the Will so signed is the Will of the testator, and each page of the Will, excluding the page on which this certificate appears, is also signed, anywhere on the page, by the commissioner of oaths who so certifies: …."

There have been conflicting court decisions on the fine points of the testamentary formalities. The South African courts have the power to condone formally defective Wills under certain circumstances.

To ensure compliance, the Will should be written on paper, signed properly by the testator at the end of the Will and anywhere on each page of the Will in the presence of two competent witnesses, who both witness the signature, and then each witness signs the Will. A competent witness is one who is 14 years

of age or above and competent to give evidence in a court of law.



The American law of Wills is largely based on English law. There are some differences in requirements for a valid Will between the different States. Some States have also embraced new technology regarding Wills.

- There are primarily two types of Wills in the USA: attested (i.e., witnessed) and holographic. About half of the states allow a holographic Will, which is wholly handwritten, signed and dated, and does not require witnesses.
- A Will requires the signature of the testator or signed “in the testator’s name by some other individual.” The majority of States require that the signature appears at the end of the Will. Few States require that the Will is also signed on each page.
- Since attested Wills need to be witnessed, writing of a Will for practical purposes will be on paper. Nevada has enacted a statute allowing electronic Wills, while Louisiana and Indiana allow video recordings of Will execution procedure to be admissible to demonstrate that formalities were observed.
- Most States require a witnessed Will with two witnesses who observe the testator sign his/her Will after which they sign the Will.
- Attested Wills now require two witnesses in all States, although until recently some States required three. The States vary as to what the witnesses must witness: the actual signature of the testator or mere acknowledgment by the testator. A minor of States require that the testator declares to the witnesses that the document being signed is his Will.
- Louisiana requires that witnesses expressly sign an attestation clause indicating that the testator requested they act as witnesses and declare the document subscribed to be his Will.
- Those States that require the witnesses to sign in “the presence of the testator” have interpreted it differently. The Universal Probate Code has not made this a requirement.
- Most of the States disallow a legacy in favour of a witness, but the Will remains valid. This applies to witnesses who had an interest at the time of execution of the Will.
- In 2008 the Uniform Probate Code was amended to allow for the validity of a Will that was not witnessed but was acknowledged by the testator before a notary public or other individual authorized by law to take acknowledgments.



Section 4 of the Succession Law Reform Act 1990 of Ontario, last amended 2009 stipulates:
"Subject to sections 5 and 6 a Will is not valid unless:
a. at its end, it is signed by the testator or by some other person in his presence and by his or her direction;
b. the testator makes or acknowledges the signature in the presence of two or more attesting witnesses present at the same time; and
c. two or more of the attesting witnesses subscribe the Will in the presence of the testator."
Sections 5 and 6 state that a holographic Will made by a testator in his own handwriting and signature does not require witnesses and similarly a Will of a testator on active military service.

A bequest or other disposition in favour of a witness or his/her spouse is void but the Will remains valid.



Section 78 of the Succession Act, 1965 requires that for a Will to be valid it must be in writing and:

- Be signed at the foot or end by the testator (or some other person in his presence and by his direction).
- That the signature be made or acknowledged by the testator in the presence of each of two witnesses or more present at the same time, and that each witness attests by his signature the signature of the testator, in the presence of the testator, but no form of attestation shall be necessary not shall it be necessary for the witnesses to sign in the presence of each other.



There are no separate rules of testamentary formalities, and Wills are solemnized in the same way as other judicial acts for which writing is required.

Under the provisions of the Requirements of Writing (Scotland) Act 1995, Wills, a will needs to be written and subscribed for it to be valid.

- A subscribed Will consists of the testator signing each page of the Will, including the last page, but there is no witness; such a Will is valid but not probative (self-evidencing document), so before a Confirmation can be granted by the Sheriff, an affidavit must be produced as evidence for the testator’s handwriting.
- A subscribed and attested Will, in Scots law, is one which has been signed by the testator on each sheet of the Will, including at the end of the last page, and also signed by one witness on the last page together with his/her name and address; such a Will is probative (self-evidencing).
- The witness should be a minimum of sixteen years of age and of full mental capacity. The witness should know the testator and see the testator sign.
- If the witness is a beneficiary of the Will, any bequest in their favour under the Will will be deemed void.

Testamentary formalities in a particular country can change, so it is important to check the latest laws online using government websites. The information provided in this article is for education and information and does not constitute legal advice in any way.