You have seen in earlier articles that a court, wherever possible, will uphold the validity of a will unless convincing evidence is produced to the contrary.

Section 9 of the Wills Act 1937 requires that a will must be in writing, signed by the testator (or by another in their presence and direction) and that the signature is witnessed by two or more persons who then each sign the will themselves.

However, the Court of Appeal has recently decided in Payne and another v Payne [2018] EWCA Civ 985 that a will is valid even though the witness did not sign it!

The background of this case was that the testator had made a will in 1998. A further home-made will dated 2012, emerged after his death. Naturally, both wills benefitted different relatives who each then levied challenges against the other about the validity of those wills. At the first hearing, the judge determined that both wills were invalid. However that decision was appealed and the Court of Appeal determined that only the 2012 will was invalid and the 1998 was valid.

Both witnesses to the 1998 will had provided statutory declarations confirming they witnessed the will. In addition, one of the witnesses gave persuasive evidence at the hearing indicating that they had seen the testator add his signature, and then filled in his details (i.e. name, address and occupation) but had not signed it because the will form that was being used did not include a place for their signature. The Court of Appeal determined that the simple act of the witness writing his name, with the intention that it should act as a formal attestation to the will, was sufficient for the purposes of the Wills Act 1937.

If you believe a will to be invalid, then you should contact professionals at the earliest possible stage as investigations will be needed to determine whether or not a challenge is likely to succeed. It is also important that when you are making a will, that specialist legal advice is taken to limit the risk of any challenge being made after your death.

To discuss the validity of a will, contact the wills, inheritance and trust disputes team by calling 01752 203500 or emailing

anna wonnacott

Anna Wonnacott, solicitor

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