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Why limitation of liability clauses deserve more attention than they get
Christopher Perrin
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:
- Be in writing, signed by the testator, or by someone else in their presence at their direction;
- Appear that the testator intended by their signature to give effect to the will; and
- 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.
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