Insights - 22/03/2017

“Car bonnet” execution of a Will fuels legal debate

The recent case of Wilson v Lassman [2017] EWHC 85 (Ch) highlights the importance of ensuring the correct procedure is followed in relation to the signing and witnessing of a Will.

This memorable case concerns someone who, after signing his Will, had it witnessed on a car bonnet on his driveway. This circumstance gave rise to a legal dispute over whether the correct formalities of Will execution had been observed. This case is an example of the type of dispute that can be mitigated or avoided by instructing a professional Will-drafter to prepare a Will.

The requirements to properly execute a Will are set out in section 9 of the Wills Act 1837. The Will must be in writing and signed by the person making the Will (the Testator). The signature must be made or acknowledged by the Testator in the presence of two or more witnesses at the same time and each witness either signs or acknowledges their signature.

The Will in this case was not prepared by solicitors, but was written, in manuscript, by the deceased on a Will form and purportedly attested by two witnesses. The Will said that the Testator signed in the presence of two witnesses who also signed, but it was argued that in fact the Testator had signed the Will before presenting it to the witnesses.

In this case, the witnesses had to be located post- death and questioned in order to provide evidence of what had happened and their answers and also their witness statements were produced at the Court hearing. Each witness’s account was not totally consistent with the other and therefore the facts had to be examined closely.

Ultimately the Judge found the Will to have been correctly witnessed because he was satisfied that the deceased “acknowledged” his signature on the Will to the two witnesses, who then signed.

The case highlights that if it is found that the correct procedure was not followed and the Will is ultimately held as invalid then the deceased’s estate may be administered according to a previous Will or the intestacy rules, which may not reflect his actual wishes. Even if the Will is found to be valid (as in this case), any dispute in Court over the validity of the Will can be costly and stressful for family members. It therefore demonstrates that whilst the “DIY Will” route is often perceived as a cost-saving option, having a professional to guide the process can provide peace of mind and help to avoid disputes arising over the validity of a Will.

Karen Grimm specialises in the preparation of Wills so if you would like further advice in relation to your Will please do not hesitate to contact her on 01483 215 355 or email [email protected] 

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