Challenging a will - the weird and wonderful world of wills
- AuthorLisa Cox
In order for a will to be valid, it must comply with the formalities laid out under s.9 of the Wills Act 1837. These conditions include that it must be in writing, signed by the testator or on their behalf in their presence by their direction, it must appear that the testator intended by his signature to give effect to the will and it must be witnessed by two people who are in the mental and physical presence of the testator at the same time.
Whilst these conditions appear straightforward, some weird and wonderful cases heard over the years have provided guidance as to how these conditions should be interpreted.
An eggshell will
You may have heard about the curious case of the will written on an eggshell, in which a Manchester widow found an eggshell in her husband’s bedroom, written on it was “17-1925. Mag. Everything I possess. J.B”. The handwriting was indeed that of her late husband and Mag was the affectionate name by which she was known to him. Surprisingly, the court held that the will was valid. Whilst the testator was a seaman, his duties were partly on shore and partly at sea therefore the question remains why an eggshell was chosen to record his last wishes? Perhaps he could not find paper, or maybe he was a man with a whimsical sense of humour. Unfortunately, I cannot locate the full facts of the case due it being heard in 1926, but none the less, I would be interested to see if the result would be the same if the case were heard today.
It is not only the requirement of the will be in writing which has produced some interesting queries, but also the signature of the testator. Over the years, an inky thumb print, initials, a mark made by a rubber stamp with the testator’s initials, and the words “your loving mother” have all been held to be valid signatures. However, it is not enough to simply sign a will, you must have also intended for it to have effect.
Signing the right will
Arguably, the most recent bizarre case concerning the formalities of wills is Marley v Rawlings, in which a husband and wife making a will in identical terms signed the other’s will! After drafting the wills in 1999, the solicitor accidently gave Mr & Mrs Rawlings the other’s draft wills to sign. These were witnessed then put into storage. It was not until the death of Mr Rawlings that the mistake was discovered and his sons sought to have the will declared invalid. Eventually, the case reached the Supreme Court, which unanimously agreed that the will should be admitted to probate so it can properly express Mr Rawlings wishes as, even though the wrong will was signed, he intended that the will should have effect.
Upholding the wishes of a testator
Ultimately, each case turns on its own facts. But these cases show that, in general, the courts are concerned to uphold the wishes of a testator wherever possible. It will therefore be difficult to challenge a will on the basis that formalities have not been complied with, unless there is strong evidence that the testator did not intend to make a will, or the witnesses could not have witnessed it. However, lack of proper formalities is just one of the grounds upon which the validity of a will can be challenged, so defendants to a will dispute need not count their eggs before they hatch!
If you would like to discuss how to challenge a will, please contact a member of our specialist Court of Protection & Inheritance Disputes team who will be able to assist you. I am based at our Colchester Office and can be reached on 01206 217 307 or firstname.lastname@example.org