TESTAMENTARY FORMALITIES

 

One of the most frequent questions I get asked by people contemplating writing their Will is, “Do I need a solicitor to write my Will?” The simple answer to this is, “No, providing you follow the testamentary formalities of your jurisdiction. This is certainly true for those living in England and Wales and many other jurisdictions.” If your estate is likely to be valued above the Nil Rate Band then you should seek advise from a tax advisor or solicitor familiar with trusts and estate planning.

This article outlines the testamentary formalities in many common law countries for the purposes of providing information.

Testamentary formalities are the formalities the law imposes for testamentary disposals of property. The legal instrument used for this purpose is often is the Will although increasing Will substitutes are being used for the benefits they offer.

A Will which is not properly signed and witnessed is invalid. The testamentary formalities (signing and witnessing process) must be according to the law of the land for a Will to be legally valid. As soon as the signing by the testator and witnessing is complete the Will is legally binding.

The purposes of testamentary formalities include:

1. To impress on the testator the significance of what he is doing,
2. To serve as an evidentiary function as to the intention of the testator,
3. To serve as a protective function against fraud, and

To channel the testator’s wishes into a standardised format that can be interpreted by the law courts

 

Testamentary formalities in Islamic law

Islamic law is not a uniform corpus iuris but consists of a number of Islamic schools of jurisprudence (fiqh). Unlike in common law the nomination of an heir is not permitted and nor can a legal be disinherited. The testamentary dispositions are limited to bequests as discussed here. There is disagreement over whether the testimony of a witness is a prerequisite for a valid Will or whether it is solely a means of evidence to establish the presence of a Will.

All the Islamic schools of fiqh acknowledge the principle of informality, in that no specific way is required for the formal validity of a Will. In Islam, a Will may be in writing, an oral statement or conveyed by signs, as long as the intention of the testator (Will maker) is clear.
The majority view of Islamic scholars is that a written Will does not need the signature of the testator. If the Will is written by a third person the testator must be identifiable.

The concept of a secret Will is accepted by some Islamic scholars, these have certain rules attached to them.  The witnesses do not need to know the contents of the secret Will, they only need to attest that the document presented to them constitutes a Will. Holographic Wills in this context would be invalid.

Important key points:

1. The intention of the testator must be clear
2. Some scholars require an execution note in a written Will indicating the Will is to be executed.
3. Except for a secret Will scholars disagree as to whether attestation of a Will is necessary for its validity. Some scholars consider the words of the Quran 5:106 as a recommendation and not a compulsory requirement for the validity of a Will. Witnesses are required for proof of a Will not its validity.
4. In the Hanafi fiqh a handwritten Will must be testified by two witnesses for its validity.
5. If you are a Muslim living in a non-Muslim state you must follow the testamentary formalities of your local jurisdiction to ensure your Will is valid according to your country of residence.

 

England & Wales and Northern Ireland

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:

1. The Will must be in writing; and
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 1^st January 1983 does not insist the signature has to be at the end of the Will; and
3. The testator intended by his signature to give effect to the Will; and
4. The testator’s signature must be made or acknowledged in the presence of two witnesses present at the same time; and
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 to 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.

 

Australia

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. Will is not valid unless:

1. it is in writing and signed by the testator or by some other person in the presence of and direction of the testator, and
2. the signature is made or acknowledged by the testator in the presence of 2 or more witnesses  present at the same time, and
3. 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 signing 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:

1. sign the document,
2. acknowledge that a person directed by the testator signed the document in the testator’s presence,

4. At least two witnesses must

1. be together in the testator’s presence when the testator complies with subsection (iii),
2. each state on the document, in the testator’s presence, that the witness was present when the testator complied with subsection (iii); and
3. 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 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.

 

USA

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 a 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 statue 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 acknowledgement by the testator. A minor of States requires 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 authorised by law to take acknowledgements.

 

Canada

The section 4 Succession Law Reform Act 1990 of Ontario, last amended 2009 stipulates:

Subject to sections 5 and 6  a Will is not valid unless:

1. at its end it is signed by the testator or by some other person in his presence and by his or her direction;
2. the testator makes or acknowledges the signature in the presence of two or more attesting witnesses present at the same time; and
3. 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.

 

Ireland

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 attest 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.

 

Scotland

There are no separate rules of testamentary formalities, and Wills are solemnised 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 law online using government websites. The information provided in this article is for education and information and does not constitute legal advise in any way.

 

Dr. A. Hussain, England, Feb. 2022