The testator records a video clearly stating who should inherit. Two people watch and sign a paper confirming they witnessed the recording.
Invalid will — not in writing
• s.9(a): Will must be in writing. A video recording is not writing.
• Witnesses signing a separate paper does not cure it.
• Clear testamentary intention is irrelevant — formalities are mandatory.
The testator dictates their wishes into a voice recorder in hospital with a nurse and doctor present. They die before it is transcribed.
Invalid will — not in writing
• An oral declaration, even if recorded, does not satisfy s.9(a).
• No emergency or deathbed exception for civilian adults.
• Trap: distinguish from privileged wills (s.11 — armed forces/mariners only).
The testator types a will on a laptop, saves it, and emails it to two people who reply confirming they agree. No hard copy is ever printed or signed.
Multiple failures
• Writing: arguable (electronic document).
• Signature: not met — no physical or electronic signature under s.9(b).
• Witness presence: not met — email confirmation ≠ valid attestation.
• Electronic Communications Act 2000 does not extend to wills.
The testator writes a letter to their solicitor saying ‘when I die I want everything to go to my niece.’ It is signed by the testator and two witnesses but is not headed ‘Will.’
Valid — no prescribed form required
• s.9 requires writing, signature, and witnesses — not specific labelling.
• Substance over form. A letter can be admitted to probate if all formalities met.
• Flag: evidence of testamentary intention would need to be established.
The testator writes their name at the very top of the first page of a handwritten will. The dispositive provisions follow below. Witnesses sign at the bottom.
Valid — signature need not be at the foot
• Since s.17 AJA 1982 amended s.9, no requirement for signature at the end.
• Valid if intended to give effect to the will.
• Practical risk: text added after signing may not be authenticated.
The testator has severe arthritis and cannot write. They make an ‘X’ mark on the will in the presence of two witnesses.
Valid — a mark suffices as a signature
• An ‘X’ satisfies s.9 if intended by the testator to be their signature.
• Must be made or acknowledged in presence of two witnesses present at the same time.
• Flag: consider knowledge and approval — does the testator understand the will’s contents?
The testator initials each page ‘R.T.’ and writes only their initials (not full name) on the final page above the witness signatures.
Valid — initials can constitute a signature
• Initials satisfy s.9 if intended to authenticate the document as the will.
• Initialling every page is good practice but NOT a legal requirement.
• Only one signature authenticating the whole will is needed.
The testator is paralysed and instructs their solicitor to sign on their behalf. The solicitor signs in the testator’s presence, by the testator’s direction, with two witnesses present.
Valid — proxy signature under s.9(a)
• s.9(a) permits signing by another person in the testator’s presence and by their direction.
• Three requirements: (1) signed in testator’s presence; (2) by testator’s direction; (3) testator has knowledge and approval.
• All met here.
The testator is housebound and asks their son to go to the solicitor’s office and sign the will on their behalf. The son signs at the office with two witnesses. The testator is at home.
Invalid will — proxy not in testator’s presence
• s.9(a) requires proxy signing ‘in the testator’s presence.’
• Son signed at the office; testator was at home.
• Clear direction given is irrelevant — the presence requirement is absolute.
A carer notices the testator’s unsigned will on the bedside table and, wanting to help, signs the testator’s name. Two other staff are in the room and sign as witnesses.
Invalid will — no direction from testator
• s.9(a) requires signing ‘by the testator’s direction.’
• Carer acted on own initiative — no direction given.
• Also flag: no evidence of knowledge and approval; potential undue influence concerns.
The testator signs in front of Witness 1, who signs. Witness 1 leaves. Witness 2 arrives 10 minutes later, the testator tells them they have signed, and Witness 2 signs.
Invalid will — witnesses never simultaneously present
• s.9(c): signature must be made or acknowledged in the presence of two witnesses present at the same time.
• Testator acknowledged to Witness 2, but Witness 1 had already left.
• Both must be present together for signing OR acknowledgment.
The testator signs alone at home on Monday. On Wednesday, they show the will to two colleagues together and say ‘this is my will and that is my signature.’ Both colleagues then sign.
Valid — acknowledgment to both witnesses together
• s.9(c) permits signature to be ‘made or acknowledged’ in witnesses’ presence.
• Testator acknowledged to both witnesses present at the same time.
• Both then signed in testator’s presence — s.9(d) satisfied.
As the testator picks up the pen to sign, Witness 1’s phone rings and they step into the hallway. The testator signs while Witness 1 is out. Witness 1 returns 30 seconds later. The testator says nothing further. Both witnesses sign.
Invalid will — no acknowledgment after witness returned
• Testator signed in presence of only one witness.
• Brief absence is irrelevant — the rule is absolute.
• Could be saved if testator acknowledged signature after Witness 1 returned (but facts say they did not).
• Always check: was there a subsequent acknowledgment?
The testator signs, folds the paper so the signature is hidden, and tells both witnesses (present together): ‘I have signed my will and I need you both to sign.’ The witnesses sign without seeing the signature.
Valid — witnesses need not see the signature
• Acknowledgment can be by words or conduct — witnesses do not need to see the actual signature.
• Testator verbally acknowledged; both witnesses present at the same time.
• Poor practice but technically compliant.
The testator signs and only one person is present who signs as a witness. No second witness is ever obtained.
Invalid will — one witness insufficient
• s.9(c): requires two or more witnesses present at the same time.
• Will is invalid.
• Estate passes under any previous valid will, or on intestacy.
The testator signs in front of two witnesses. Witness 1 signs immediately. The testator then leaves the room. Witness 2 signs while the testator is out of the room.
Invalid will — Witness 2 did not sign in testator’s presence
• s.9(d): each witness must sign or acknowledge in testator’s presence.
• Witness 2 signed while testator was absent.
• Could be cured if Witness 2 later acknowledges their signature in testator’s presence.
• Note: witnesses do NOT need to sign in each other’s presence.
The testator acknowledges their signature to both witnesses together. Witness 1 signs in the testator’s presence and leaves. Witness 2 then enters separately and signs in the testator’s presence. The two witnesses are never together when signing.
Valid (if s.9(c) was met for the testator’s signature)
• s.9(d): each witness can sign separately — they do NOT need to sign in each other’s presence.
• Key threshold: were both witnesses present at the same time when testator signed or acknowledged? If yes → valid.
• Compound issue: always check s.9(c) first, then s.9(d).
Witness 1 signs in the testator’s presence. Witness 2 cannot find a pen and leaves. The next day, Witness 2 returns and tells the testator: ‘I signed the will at home last night — here it is.’
Likely valid — witness acknowledged signature in testator’s presence
• s.9(d) permits a witness to sign OR acknowledge their signature in testator’s presence.
• Witness 2 signed at home (not in testator’s presence) but acknowledged next day in testator’s presence.
• Acknowledgment cures the initial defect — same principle as for testators.
A beneficiary named in the will acts as one of the two attesting witnesses.
Will valid — but gift to witness-beneficiary is VOID (s.15 WA)
• The witness can still attest competently.
• Their gift fails and falls into residue (or intestacy if it IS the residue).
• s.15 also catches the witness’s spouse/CP — always check both.
The spouse of a beneficiary acts as one of the two witnesses. The beneficiary themselves does not witness.
Gift to the beneficiary is VOID (s.15 WA)
• s.15 extends to the spouse/CP of the witness.
• Will remains valid but the beneficiary receives nothing.
• Trap: the beneficiary didn’t witness — but their spouse did, which is enough to void the gift.
One of the two witnesses is the testator’s 16-year-old granddaughter.
Risk — minor witness may be incompetent
• Witnesses should be adults (18+) of sound mind.
• A 16-year-old’s competence is questionable — if found incompetent, the will has only one valid witness and is invalid.
• Advise: always use adult witnesses.
One of the two witnesses has advanced dementia and cannot understand what they are signing.
Invalid will — witness lacks capacity
• A witness must be of sound mind and capable of understanding they are attesting a signature.
• Capacity threshold for witnesses is lower than testamentary capacity — but advanced dementia fails even this low bar.
• Will has only one valid witness → invalid.
A witness is the chief executive of a charity that is named as a beneficiary in the will.
Gift to charity is NOT void under s.15
• s.15 voids gifts to the witness personally and their spouse/CP — not to organisations the witness is connected to.
• Charity is a separate legal entity from the witness.
• Poor practice — flag undue influence risk — but gift stands.
The will is properly signed and witnessed but contains no date. It is the only will found after death.
Valid — dating is not a s.9 requirement
• No issue if it is the only testamentary document.
• Dating is good practice, not a formality.
• Move on quickly.
