What Happens If a Will Is Signed Incorrectly?

A will is one of the most important legal documents a person can create, ensuring that their assets are distributed according to their wishes upon their passing. However, for a will to be legally valid, it must comply with strict legal formalities. A common issue that arises in estate planning is an improperly signed document, which can have serious consequences for beneficiaries and the probate process. Errors in execution may lead to disputes, delays, or even the document being declared invalid altogether.

This article explores what can go wrong when a will is not signed correctly, the implications for the testator’s estate, and what can be done to remedy the situation.

Legal Requirements for Signing a Will

The precise requirements for signing a will vary depending on the jurisdiction, though many countries follow similar principles. In England and Wales, the signing and witnessing of a will are governed by the Wills Act 1837. The legal requirements include:

– The will must be in writing.
– The testator (the person making the will) must sign it in the presence of at least two independent adult witnesses.
– The witnesses must also sign the will in the presence of the testator.
– The testator must be of sound mind and acting voluntarily.

A will that does not adhere to these formalities may be considered invalid or subject to legal challenge. Therefore, it is crucial to ensure that every step is followed correctly to avoid any unintended consequences.

Common Mistakes in Signing a Will

Errors in signing a will occur more often than one might expect and can lead to serious legal complications. Some of the most common mistakes include:

Lack of Proper Witnessing

One of the most frequent errors occurs when the will is signed without the required two witnesses, or if one or both witnesses do not sign correctly. If the testator signs without proper witnessing, the will may be declared invalid.

Additionally, witnesses must be present at the same time when the testator signs. If they sign at different times or without being present together, the will may fail to comply with the legal requirements.

Witnesses Who Are Not Independent

A witness should be independent, meaning they should not stand to benefit from the will. If a beneficiary (or their spouse) acts as a witness, they might lose their entitlement under the will, depending on the jurisdiction.

Testator’s Signature Missing or Incorrectly Placed

A will is only valid if it bears the testator’s signature. If the signature is missing, unsigned pages exist, or the signature is placed incorrectly (such as on the wrong page), it could raise doubts about the document’s legitimacy. Some courts may accept evidence to prove intent, but there is no guarantee without compliance with legal formalities.

Testator Lacking Mental Capacity

If a testator is not of sound mind when signing the will, it can be challenged. To minimise disputes, legal professionals often recommend obtaining medical evidence if there are doubts about mental capacity.

Errors in the Date

While dating the will is not always a legal requirement, an incorrect or missing date may cause confusion, especially if multiple versions exist. If multiple wills are found, determining which is the most recent could require significant legal intervention.

Consequences of an Improperly Signed Will

When a will is not signed correctly, it can lead to various legal and practical consequences. These might include the will being rejected by probate courts, disputes among beneficiaries, or a significant alteration in how the testator’s estate is distributed.

The Will May Be Declared Invalid

If a will does not meet the basic legal requirements for signing and witnessing, the probate court may declare it invalid. When this happens, the deceased person’s estate will be distributed according to intestacy laws, which may not reflect their actual wishes.

Beneficiaries May Be Disinherited

If the will is rendered invalid due to poor execution, intended beneficiaries may lose their inheritance. Instead, assets may pass to relatives according to statutory inheritance rules, which may favour individuals the testator did not intend to benefit.

Legal Disputes Among Heirs

A poorly signed will can lead to inheritance disputes among the deceased’s family members. When a will’s validity is challenged, it can result in costly, time-consuming litigation. Such disputes may also lead to long-term family conflict and financial strain on the estate.

Delays in Administering the Estate

When a will’s validity is questioned, the administration of the estate can be significantly delayed. Probate courts may require further evidence to determine whether the document is valid, or there may be multiple competing claims regarding the deceased’s assets.

What Can Be Done If a Will Is Signed Incorrectly?

If an improperly signed will is discovered, several options may be available to address the issue. The best course of action will depend on the circumstances and whether the testator is still alive to correct the mistake.

If the Testator Is Still Alive

If a mistake is discovered while the testator is still alive, the best solution is often to create a new, properly executed will. The new document should clearly state that it revokes any previous versions to avoid ambiguity. Seeking assistance from a solicitor can help ensure that the new will complies with all necessary legal formalities and prevent future disputes.

If the Testator Has Passed Away

If the testator has already passed, resolving defects in a will can be more complex. However, there may still be legal remedies available:

Bringing a Court Application to Prove the Will

In some cases, beneficiaries or executors may apply to the probate court to prove the will’s validity, even if it was not signed correctly. Courts have the discretion to accept a will if strong evidence suggests the testator intended it to be their final testament. This, however, varies by jurisdiction and is not always a guaranteed solution.

Applying to Rectify the Will

Under the Administration of Justice Act 1982, courts in England and Wales have limited power to rectify a will if it does not reflect the testator’s intentions due to a clerical error or failure to understand instructions. However, this remedy is only applicable in specific situations, such as a solicitor making an error when drafting the document.

Relying on an Earlier, Valid Will

If a defective will exists but an earlier, properly executed one is available, the earlier will may govern the estate. In such cases, probate courts may rule that the most recent defective will is invalid, meaning the previous valid will dictates the inheritance distribution instead.

Intestacy Rules May Apply

If no valid will is in place, the estate will be distributed according to intestacy laws. These rules prioritise certain family members, such as a surviving spouse, children, or close relatives, potentially disinheriting individuals the testator may have wished to benefit.

Preventing Issues with Signing a Will

To avoid complications with a will’s validity, individuals should take several precautions:

– Seek Legal Assistance: Using a solicitor ensures that the will is properly executed and legally binding.
– Choose Independent Witnesses: Ensure witnesses do not stand to benefit from the will.
– Follow Signing Formalities: All parties involved should follow correct legal procedures during execution.
– Regularly Review the Will: Reviewing the document periodically can ensure it reflects current wishes and prevents errors.
– Store the Will Safely: Keep the original document in a secure, accessible location.

Conclusion

An improperly signed will can have far-reaching consequences, from disinheriting chosen beneficiaries to causing family disputes and delays in the estate administration process. The best way to avoid these issues is to ensure that all legal formalities are correctly followed during drafting and execution. Seeking professional legal assistance can help safeguard the validity of a will and provide peace of mind that one’s final wishes will be honoured.

If a signing mistake is identified after the testator’s death, legal remedies may be available, but these can be complex and uncertain. Therefore, ensuring that the will is executed properly while the testator is alive is the most effective way to avoid disputes and complications.