Services A-Z     Pricing

The future of will disputes part 2: Challenging validity based on issues with execution

11 June 2025

Despite the requirements being well established, disputes regarding the validity of wills based on issues with execution remain common.  
 

In order for a will to be validly executed it must comply with the requirements set out at Section 9 of the Wills Act 1837 being that it must:

  1. Be in writing, signed by the testator, or by someone else in their presence at their direction;
  2. Appear that the testator intended by their signature to give effect to the will; and
  3. Be signed, or the signature acknowledged by the testator, in the presence of two or more witnesses. Each witness must either sign and attest the will or acknowledge his signatures in the presence of the testator.

While the courts normally try to give effect to testamentary dispositions when possible, if the requirements are found not to have been met, a will is not valid at law. The effect of this is that either, if there is a prior will which was valid, that will should be followed, or if there is no prior valid will, an intestacy arises.

There have been a number of recent cases dealing with issues around execution. In the case of British Diabetic Association v Chenery [2024], a will that had been written on two separate pieces of cardboard, one cut from a Young’s fish fillets box and one cut from a Mr Kipling mince pie box, was found to be valid.

The testator prepared the will shortly before he sadly died by suicide. The two pieces of cardboard were numbered one and two and expressed a number of wishes, mainly specific wishes that certain property and belongings were to go to charity. The second piece of cardboard was signed by the testator and there were two signatures above of the attesting witnesses.

The Probate Registry had refused to admit the will to probate because only one of the pages was executed. The charity issued the claim to pronounce the will. Had the will not been valid, there would have been an intestacy under which the estate would have been shared between the testator’s siblings. The testator’s family however did not oppose the application.

The Court found that:

  • The two pages contained dispositions quite clearly intended to take effect on the testator’s death and it was clear the he intended to benefit the diabetic society and he was not intending to die intestate.
  • The two pages were considered by the testator to be a two-page whole – the numbering supported this.
  • Although the attesting witnesses did not see the first page of the will, the position in law is there is presumption that the first page would have been in the room at the time of the attestation and there was no evidence to rebut that presumption.
  • The evidence given by the two attesting witnesses as to the manner in which they described the testator presenting the second page to them for signature – they gave evidence that he described it as his will and stated that he needed two witnesses to his signature – supported a finding that this amounted to an acknowledgement of his signature by the testator sufficient to satisfy the requirement summarised at 3. above.

There have also recently been reports of a case heard at the Central London County Court whereby video footage was produced of the Defendant guiding her mother’s hand when signing a new will under which the defendant benefitted; the will leaving the entire estate to her. The Defendant’s brother contested the will. It is reported that the Judge found that, along with lack of capacity, there was a failure in execution in that the testator did not ask the defendant for help in signing the will, nor did she direct her to sign the will on her behalf. The will was found not to be valid.

These types of disputes are incredibly fact specific and evidence is always key.

On 16 May 2025, the Law Commission published recommendations to reform the law relating to wills including the creation of a draft bill for a new Wills Act. The recommendations include:

  • Provision for wills to be made electronically – all of the formalities listed at the start of this article would still apply but there would be no need for a will to be on paper or for a wet ink signature. 
  • That the requirement for the witnesses to attest when they sign the will in the presence of the testator should also apply when the witnesses acknowledge their signatures in the presence of the testator. They also recommend that words clarifying the meaning of attestation are included in the bill, i.e. that the witnesses are confirming the will was signed by the testator (or signature acknowledged) in the presence of two or more witnesses.
  • More significantly, courts could be given a dispensing power to order that a will be given effect even if the execution formalities had not been met, provided it is satisfied that the will in question demonstrates the testator’s intentions at the time the will was made, and from then until their death.

This is not law yet; however, if the recommendations are taken forward, a will could still be treated as valid even if the formalities had not been met. It is as yet unclear what evidence would be required to show that the will demonstrates the testator’s intentions at the time the will was made and until their death. However, the recommendations make clear that the expectation would be that the court would only exercise this power where there is clear evidence of testamentary intentions.

Further information

If you have any questions regarding this blog, please contact Sophie Mass in our Dispute Resolution team. 

 

About the author

Sophie is an Associate in the Dispute Resolution team. She specialises in trust, estate and court of protection disputes, often acting in high value and complex cases. 

 

Latest blogs & news

The International Data Insights Report: Trends in international arbitration

Two recent publications, the Law Society’s International Data Insights Report 2025 and Queen Mary University’s (“QMU”) International Arbitration Survey, analyse statistics concerning international arbitration and reaffirm London’s leading role in global dispute resolution.

Practical tips for trustees dealing with breach of trust allegations

Being a trustee carries significant responsibilities and often involves managing high value assets and making complex decisions in the best interests of all the beneficiaries. While trustees generally strive to act with care and integrity, allegations of breach of trust can arise. Whilst such allegations can be stressful and complex, how trustees manage the trust and how they respond to allegations is crucial to maintaining trust, protecting the trust’s assets, and avoiding potential contentious proceedings.

The tips below should generally be adopted through the life of the trust and may avoid disputes arising in the first place.

Civil Fraud Case Update: Q3 2025

This quarterly civil fraud update provides a summary of reported decisions handed down in the courts of England and Wales in the period of July - September 2025.

UAE agrees to share crypto information with international tax authorities

The United Arab Emirates (“UAE”) has joined in global efforts to improve transparency and compliance in the crypto sector by signing the Multilateral Competent Authority Agreement (MCAA) under the Crypto-Asset Reporting Framework (CARF). The framework is expected to be rolled out in UAE in 2027, with the first automatic exchanges of information with other tax authorities such as HMRC taking place in 2028.

HMRC Covid scheme amnesty: action by 31 December 2025

The COVID pandemic was a difficult time for businesses,  and many legitimately relied on financial support provided through government schemes to help them to survive and retain employees. However, it is estimated by HMRC that circa £10billion was also lost as a result of incorrect applications and outright fraud.

‘No win, no fee’ - are clients being hoodwinked?

At a time when a national broadcaster feels obliged to unpick (for the lawyer in us: alleged) misleading information from the leader of the free world, I almost choked on my breakfast when reading that we should also be concerned that some of us lawyers may be misleading the public too: 'No win, no fee' under fire: SRA vows to stop law firms hoodwinking consumers | Law Gazette Why now is a mystery; the term has been a feature of daytime TV advertising for decades!

Crypto reporting is changing: what this means for you - and HMRC

As the global regulatory landscape continues to evolve, two major frameworks are set to reshape how crypto-assets are reported: the Crypto-Asset Reporting Framework (“CARF”) and the European Union’s Directive on Administration Cooperation in taxation (“DAC8”).

Supreme Court clarifies VAT group rules in Prudential v HMRC

On 11 September 2025, the Supreme Court handed down its judgment in The Prudential Assurance Company Ltd v Commissioners for His Majesty’s Revenue and Customs, a case that delves into the interaction between VAT group rules and the timing of taxable supplies. The decision has significant implications for businesses operating within VAT groups, particularly in relation to deferred consideration and success fees.

Rayner my parade! The importance of specialist advice.

The headlines this week around former Deputy Prime Minister Angela Rayner are a reminder of the importance of taking the right advice from appropriate professionals and the potential consequences when such advice is called into question.

Civil Fraud case update Q2 2025

This quarterly civil fraud update provides a summary of reported decisions handed down in the courts of England and Wales in the period of April - June 2025.

Oral evidence series Part 6: Is an honest recollection of events truly evidence?

Judicial commentary shows that judges are exceedingly aware of the unreliability of witnesses’ memory when considering evidence at trial. While judges may take differing views as to the reliance that ought to be placed on oral evidence as compared to contemporaneous documents, procedural safeguards are now in place to help strengthen the reliability of witness evidence, in CPR Practice Direction 57AC - Trial Witness Statements in the Business and Property Courts (“PD 57AC”).

Privilege update: Privy Council confirms the shareholder principle no longer applies in England & Wales

We have previously written about the potential death of the shareholder principle in our previous blogs. The recent Privy Council decision in Jardine Strategic Limited v Oasis Investments II Master Fund Ltd & Ors No 2 confirms what we suspected; the shareholder principle no longer exists in England & Wales.

 

Oral Evidence Series Part 5: How Does Oral Evidence Differ in Arbitration Proceedings compared to Court?

We all know that arbitration and litigation are governed by different rules which dictate the way disputes are dealt with and the way that hearings proceed.  One perhaps surprising difference, however, is the approach to oral evidence. 

Oral evidence part 4: Issues with expert evidence

Issues with expert evidence can have a profound impact on the credibility of a party’s case, and consequently the likelihood or not of a party succeeding at trial. In this article we discuss some recent case law which highlights the need for parties to carefully comply with their procedural obligations regarding expert evidence, namely Part 35 of the CPR (“Part 35”) and the accompanying Practice Direction, to avoid such risks.

Oral evidence part 3: What is the role of a liquidator in giving evidence?

One of the key duties of a liquidator is to investigate the affairs of the insolvent company to determine whether its demise resulted from the acts (or omissions) of its directors or third parties against whom claims may be brought to obtain redress for losses suffered by the Company. This article focuses on claims initiated by the liquidator themselves, whether on their own behalf or on behalf of the company, and considers the weight that will be given to the liquidator’s evidence.

Oral evidence part 2: What if a witness doesn’t turn up to court?

Where a party wishes to rely on a witness statement at trial, Civil Procedure Rule (CPR) 32.5 provides that they must call the witness to give oral evidence unless the court orders otherwise, or notice is provided of the intention to rely on the statement as hearsay evidence.

One of the issues that may arise during litigation is a witness failing to turn up at court to give evidence.

Oral evidence part 1: Giving evidence abroad in the First-tier Tax Tribunal

In an ideal world, witnesses providing evidence in First-tier Tax Tribunal proceedings would do so in person at a hearing. It is often easier to build a rapport with the Judge in person, you avoid technical issues, and however informal the Tax Tribunal is in comparison to the civil courts, there is something to be said about looking into the whites of a witness’s eyes during a cross examination.

The future of will disputes part 4: Challenging validity based on capacity

For a will to be valid, the testator must have had testamentary capacity at the time it was made. Testamentary capacity refers to the mental ability of the testator to make a valid will.

Counting the cost of the UK tax system

Waqar Shah, a Partner at Kingsley Napley, takes a closer look at the recent report by the Committee of Public Accounts on the cost of the tax system.

The future of will disputes part three: challenging validity based on forgery and fraud

When a loved one dies, the terms of their will can sometimes surprise surviving family members, with unexpected beneficiaries or unequal distribution of the estate. In England and Wales, individuals have the freedom to leave their estate to anyone, with no legal obligation to provide for specific family members. Even if the will seems unfair, the law generally upholds the testator's wishes, if the will has been validly made. However, certain family members and dependants may be able to bring a claim against the estate (under the Inheritance (Provision for Family and Dependants) Act 1975), if adequate provision has not been made for them under a will.

Skip to content Home About Us Insights Services Contact Accessibility