Acknowledging an earlier signature to two witnesses present together (Wills Act 1837 s.9)
Delroy, an adult domiciled in England, wrote out and signed his will alone at his kitchen table one evening. The next morning he asked two neighbours, Agnieszka and Farid, to come in together. With both of them in the room at the same time, he pointed to his signature and said, 'That is my signature on my will.' Agnieszka then signed as a witness in Delroy's presence and went home; Farid signed in Delroy's presence ten minutes later, after Agnieszka had left. The will has no attestation clause. Delroy has now died.
Which of the following best describes whether the will was validly executed?
Choose one answer to see the reasoning.
Worked answer
Correct answer C: It is valid: Delroy acknowledged his signature to both witnesses together and each signed in his presence.
THE RULE TO REMEMBER
A testator may sign alone and later acknowledge the signature to two witnesses present together; each witness must then sign in the testator's presence, but not necessarily in each other's.
Acknowledging an earlier signature to two witnesses present together (Wills Act 1837 s.9)
Section 9(1) Wills Act 1837 requires the will to be in writing and signed by the testator with the intention of giving effect to it, and the signature must be 'made or acknowledged' by the testator in the presence of two or more witnesses present at the same time. Each witness must then attest and sign (or acknowledge their signature) in the presence of the testator, 'but not necessarily in the presence of any other witness'. Delroy's signature was made in private, but he acknowledged it the next day to Agnieszka and Farid while both were present together, which satisfies s.9(1)(c). Each witness then signed in Delroy's presence, satisfying s.9(1)(d), and it does not matter that Farid signed after Agnieszka had left. The section expressly says no form of attestation is necessary, so the absence of an attestation clause does not invalidate the will (although it may mean evidence of due execution is needed when the will is proved).
Why A is wrong: Section 9(1)(c) is satisfied if the signature is either made or acknowledged in the witnesses' joint presence.
Why B is wrong: Section 9(1)(d) requires each witness to sign in the testator's presence, not necessarily in the presence of the other witness.
Why D is wrong: Section 9(1) states that no form of attestation is necessary; an attestation clause is evidential, not a validity requirement.
Why E is wrong: Witnesses attest the testator's signature or acknowledgment; they need not know or read the contents of the will.
A little more practice done.
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