Registration of Wills

[Gengulphus]

If you'd rather be intestate than have the ex inherit, you could always just destroy the will. Having saved the text if it's useful to you for drafting a new one.

As I understand it, destroying a will only revokes it if the destruction is deliberately done in order to revoke it - so if you wish to revoke a will by that method, make certain that it will be clear that you have done so! At least if it was prepared by a solicitor, if you don't do that then enquiries after your death may well conclude that you did sign it and it is apparently lost - and the solicitor has a copy of the signed will that can be admitted to probate once reasonable enquiries have established that...

Making certain that it will be clear isn't difficult - e.g. a letter to the solicitor saying that you have revoked it by destroying it and could they update their records to indicate that should do the job. But it is a bit more than just destroying the will!

Gengulphus

[melonfool]

If you'd rather be intestate than have the ex inherit, you could always just destroy the will. Having saved the text if it's useful to you for drafting a new one.

As I understand it, destroying a will only revokes it if the destruction is deliberately done in order to revoke it - so if you wish to revoke a will by that method, make certain that it will be clear that you have done so! At least if it was prepared by a solicitor, if you don't do that then enquiries after your death may well conclude that you did sign it and it is apparently lost - and the solicitor has a copy of the signed will that can be admitted to probate once reasonable enquiries have established that...

Making certain that it will be clear isn't difficult - e.g. a letter to the solicitor saying that you have revoked it by destroying it and could they update their records to indicate that should do the job. But it is a bit more than just destroying the will!

Gengulphus

I think I will start a thread on this topic, separately, if you don't mind, so as not to take this one [further!] off track.

Mel

[Lootman]

If you'd rather be intestate than have the ex inherit, you could always just destroy the will. Having saved the text if it's useful to you for drafting a new one.

As I understand it, destroying a will only revokes it if the destruction is deliberately done in order to revoke it - so if you wish to revoke a will by that method, make certain that it will be clear that you have done so!

There's another risk as well. Suppose you had a previous Will, call it A. Some years later, you make your current Will, call it B, which of course revokes A.

If you revoke B by destroying it, but without telling anyone, then there is a risk that a copy of A might be found by those dealing with your affairs, and assumed to be the current Will.

So rather than achieve intestacy, you might achieve Will A which, presumably, you don't want.

[melonfool]

If you'd rather be intestate than have the ex inherit, you could always just destroy the will. Having saved the text if it's useful to you for drafting a new one.

As I understand it, destroying a will only revokes it if the destruction is deliberately done in order to revoke it - so if you wish to revoke a will by that method, make certain that it will be clear that you have done so!

There's another risk as well. Suppose you had a previous Will, call it A. Some years later, you make your current Will, call it B, which of course revokes A.

If you revoke B by destroying it, but without telling anyone, then there is a risk that a copy of A might be found by those dealing with your affairs, and assumed to be the current Will.

So rather than achieve intestacy, you might achieve Will A which, presumably, you don't want.

See new thread.

Mel

[AJC5001]

There's another risk as well. Suppose you had a previous Will, call it A. Some years later, you make your current Will, call it B, which of course revokes A.

If you revoke B by destroying it, but without telling anyone, then there is a risk that a copy of A might be found by those dealing with your affairs, and assumed to be the current Will.

So rather than achieve intestacy, you might achieve Will A which, presumably, you don't want.

Which is another reason for the compulsory registration of wills, if done properly.

The creation of a valid Will B ought to result in the previously registered Will A being destroyed, so there would be no possibility of it ever being used, as it had been revoked by Will B.

How compulsory registration would handle automatic revocation upon marriage would be an 'interesting' drafting exercise for the civil servants concerned, though.

I guess a timeline showing the history of any individuals wills would be a good idea.

Adrian

[k333]

I was asked last week to witness the signature of a colleague's wife on their mortgage docs. She had signed that morning and he had videoed her. I refused. Apart from the fact I've never met her of course I wouldn't be witnessing her signing.


Mel

I have been asked to do the same thing - but without the video. I refused because I believe it would be perjury to sign as a witness when I didn't see the signature being written.

If I understand this correctly, if the signatory wanted to back out of their responsibility for paying the mortgage in the future, they could legitimately claim that their signature was not witnessed by me, making the contract void and me facing a criminal charge?

Watis

I think it's quite normal to sign something and then take it round to someone you know to be witnessed. I can recall three occasions, being a will a share takeover and an LPA. In the case of the will I did the witnessing, and the other way round for the other two. Of course I wouldn't do it for a stranger or expect someone else to!

- K

[swill453]

I think it's quite normal to sign something and then take it round to someone you know to be witnessed. I can recall three occasions, being a will a share takeover and an LPA. In the case of the will I did the witnessing, and the other way round for the other two. Of course I wouldn't do it for a stranger or expect someone else to!

It might be "normal", but if found out it makes the will invalid.

(If, say, an excluded family member was made aware of this and challenged it, would you stand up in court and assert it was signed in your presence?)

Scott.

[melonfool]

It's not 'normal' in my circles. Mind you, nor is calling the whole process of settling an estate 'probate' as someone claimed on the other thread was 'normal'.

Mel

[k333]

I think it's quite normal to sign something and then take it round to someone you know to be witnessed. I can recall three occasions, being a will a share takeover and an LPA. In the case of the will I did the witnessing, and the other way round for the other two. Of course I wouldn't do it for a stranger or expect someone else to!

It might be "normal", but if found out it makes the will invalid.

(If, say, an excluded family member was made aware of this and challenged it, would you stand up in court and assert it was signed in your presence?)

Scott.

I would say this comes in the category of a minor technicality, and "the law does not deal in trifles". The chance that it was not the correct or valid signature is remote in the extreme. But we'll see what others have to say .......

- K

[melonfool]

I think it's quite normal to sign something and then take it round to someone you know to be witnessed. I can recall three occasions, being a will a share takeover and an LPA. In the case of the will I did the witnessing, and the other way round for the other two. Of course I wouldn't do it for a stranger or expect someone else to!

It might be "normal", but if found out it makes the will invalid.

(If, say, an excluded family member was made aware of this and challenged it, would you stand up in court and assert it was signed in your presence?)

Scott.

I would say this comes in the category of a minor technicality, and "the law does not deal in trifles". The chance that it was not the correct or valid signature is remote in the extreme. But we'll see what others have to say .......

- K

Well, explain that to Harold Shipman's victim's families?

Mel

[PinkDalek]

I think it's quite normal to sign something and then take it round to someone you know to be witnessed. I can recall three occasions, being a will a share takeover and an LPA. In the case of the will I did the witnessing, and the other way round for the other two. Of course I wouldn't do it for a stranger or expect someone else to!

It might be "normal", but if found out it makes the will invalid.

(If, say, an excluded family member was made aware of this and challenged it, would you stand up in court and assert it was signed in your presence?)

Scott.

I would say this comes in the category of a minor technicality, and "the law does not deal in trifles". The chance that it was not the correct or valid signature is remote in the extreme. But we'll see what others have to say .......

- K

Do read the closed 7 page Topic below, if you want to see what others have already said about witnessing signatures.

viewtopic.php?f=2&t=2576

This particular Topic being entitled "Registration of Wills".

[Lootman]

I think it's quite normal to sign something and then take it round to someone you know to be witnessed. I can recall three occasions, being a will a share takeover and an LPA. In the case of the will I did the witnessing, and the other way round for the other two.

Be careful if you do that to ensure that the witness puts the same date on the document as the one you put when you signed it. A witness could unthinkingly just put today's date, when in fact you signed it with yesterday's date. That alone could cause the document to be challenged or rejected at a later date.

You might think nobody would notice a tiny detail, but I did that once and it got picked up on, fortunately almost immediately so I was able to fix it.

I suppose the issue is whether they are witnessing you actually signing the document or merely witnessing that it is your signature. But given the importance of some document, why wouldn't you just hold off signing it until your witness is with you? The risk may be small, but it isn't zero.

[Clitheroekid]

I think it's quite normal to sign something and then take it round to someone you know to be witnessed. I can recall three occasions, being a will a share takeover and an LPA. In the case of the will I did the witnessing ...

The law governing the execution of Wills is set out in section 9 Wils Act 1837 - http://www.legislation.gov.uk/ukpga/Wil ... /section/9

Section 9(c) makes it quite clear that for a Will to be validly executed it must be signed in the physical presence of two witnesses who are both present at the time.

The witnesses must both see the testator signing the Will. If either witness does not see the actual signing of the Will, the Will is invalid.

So if what you're saying is that the testator signed the Will, that it was then brought to you to sign as a witness and that you duly signed as a witness the Will is not valid.

If that's the case then it's essential that you tell the testator ASAP, so that he can remake it as a valid Will.

[k333]

It might be "normal", but if found out it makes the will invalid.

(If, say, an excluded family member was made aware of this and challenged it, would you stand up in court and assert it was signed in your presence?)

Scott.

I would say this comes in the category of a minor technicality, and "the law does not deal in trifles". The chance that it was not the correct or valid signature is remote in the extreme. But we'll see what others have to say .......

- K

Well, explain that to Harold Shipman's victim's families?

Mel

But that's not a minor technicality or a trifle. My examples were iMO.

-K

[k333]

I think it's quite normal to sign something and then take it round to someone you know to be witnessed. I can recall three occasions, being a will a share takeover and an LPA. In the case of the will I did the witnessing ...

The law governing the execution of Wills is set out in section 9 Wils Act 1837 - http://www.legislation.gov.uk/ukpga/Wil ... /section/9

Section 9(c) makes it quite clear that for a Will to be validly executed it must be signed in the physical presence of two witnesses who are both present at the time.

The witnesses must both see the testator signing the Will. If either witness does not see the actual signing of the Will, the Will is invalid.

So if what you're saying is that the testator signed the Will, that it was then brought to you to sign as a witness and that you duly signed as a witness the Will is not valid.

If that's the case then it's essential that you tell the testator ASAP, so that he can remake it as a valid Will.

Well I still think that if you tried to nullify a will on this sort of trivial basis you'd be in danger of getting some pretty pithy words from the judge about wasting the court's time and so on.

Well there's only one way to be sure and that's case law. Has a case like this ever come before a judge? I personally doubt it, but could be very wrong of course.

Also, coming to the 1837 act, the signature can not only be made in my presence, but it could be acknowledged instead. Does that not mean that Brian affirms that is his signature and that is good enough. Or is this some fancy technical legal term meaning something entirely different?

All for now

- K

[Clitheroekid]

Well I still think that if you tried to nullify a will on this sort of trivial basis you'd be in danger of getting some pretty pithy words from the judge about wasting the court's time and so on.

With all due respect that's absolute nonsense. The law isn't there to be obeyed when it's convenient and ignored when it's not. If you submitted this Will for probate, knowing it was invalid, you would be guilty of perjury, which is a serious criminal offence.

You might well get some pithy words from the judge, but they would be on the lines of "I sentence you to 6 months imprisonment - take him down"

Well there's only one way to be sure and that's case law. Has a case like this ever come before a judge? I personally doubt it, but could be very wrong of course.

You seem to misunderstand the nature of English law. The requirements for signature of a Will are part of the `statutory law'. This means that they are written down in a statute - in this case the Wills Act 1837. If the law is set out in a statute then that's it, and the only role of the judge is to resolve any ambiguity that may exist. In this case section 9 is crystal clear, and needs no interpretation. `Case law' is entirely irrelevant to this type of situation.

Also, coming to the 1837 act, the signature can not only be made in my presence, but it could be acknowledged instead. Does that not mean that Brian affirms that is his signature and that is good enough. Or is this some fancy technical legal term meaning something entirely different?

What that means is that if someone has already signed the Will before a witness arrives he can confirm that it's his signature, rather than having to sign it again. However, both of the two witnesses still need to be there at the time of the acknowledgment.

It seems quite clear that the Will, as it stands , is invalid. Whilst you may consider it a triviality of no consequence you do, in my opinion, at least have a duty to tell the testator that his Will's invalid. He can then decide whether to share your point of view and leave things as they are or to have the Will properly executed so as to make it valid.

[Lootman]

Also, coming to the 1837 act, the signature can not only be made in my presence, but it could be acknowledged instead. Does that not mean that Brian affirms that is his signature and that is good enough. Or is this some fancy technical legal term meaning something entirely different?

There is a distinction between verifying that a signature is yours, and actually witnessing you sign. The former may be valid for some documents, and I have had a notary verify my signature in the past. But for a Will it is fairly clear that the witnesses (you need two) are actually in your presence at the time you sign and actually see you do it.

Now, you would probably get away with them signing as witnesses later, as long as you don't mess up the dates and as long as the witnesses will state that they were there when they were not, if asked. But surely the time to take legal risks is when there is some significant benefit to doing so, as was the case in the "Missing Wills" thread that this one is based on.

Taking a legal risk for almost no benefit seems pointless to me. If you are going to sign a document today and then get your witness to sign it tomorrow, why not just wait until tomorrow to do both?

[melonfool]

Also, coming to the 1837 act, the signature can not only be made in my presence, but it could be acknowledged instead. Does that not mean that Brian affirms that is his signature and that is good enough. Or is this some fancy technical legal term meaning something entirely different?

There is a distinction between verifying that a signature is yours, and actually witnessing you sign. The former may be valid for some documents, and I have had a notary verify my signature in the past. But for a Will it is fairly clear that the witnesses (you need two) are actually in your presence at the time you sign and actually see you do it.

Now, you would probably get away with them signing as witnesses later, as long as you don't mess up the dates and as long as the witnesses will state that they were there when they were not, if asked. But surely the time to take legal risks is when there is some significant benefit to doing so, as was the case in the "Missing Wills" thread that this one is based on.

Taking a legal risk for almost no benefit seems pointless to me. If you are going to sign a document today and then get your witness to sign it tomorrow, why not just wait until tomorrow to do both?

Witnesses!

Mel

[k333]

Well I still think that if you tried to nullify a will on this sort of trivial basis you'd be in danger of getting some pretty pithy words from the judge about wasting the court's time and so on.

With all due respect that's absolute nonsense. The law isn't there to be obeyed when it's convenient and ignored when it's not. If you submitted this Will for probate, knowing it was invalid, you would be guilty of perjury, which is a serious criminal offence.

You might well get some pithy words from the judge, but they would be on the lines of "I sentence you to 6 months imprisonment - take him down"

It's not a matter of convenience. It's a matter of importance, and this possible unintended non-conformance seems trivial. And why you have me submitting someone else's will for probate and commiting perjury is beyond me.

Well there's only one way to be sure and that's case law. Has a case like this ever come before a judge? I personally doubt it, but could be very wrong of course.

You seem to misunderstand the nature of English law. The requirements for signature of a Will are part of the `statutory law'. This means that they are written down in a statute - in this case the Wills Act 1837. If the law is set out in a statute then that's it, and the only role of the judge is to resolve any ambiguity that may exist. In this case section 9 is crystal clear, and needs no interpretation. `Case law' is entirely irrelevant to this type of situation.

I'm surprised. You are saying that the judge has no discretion whatsoever. A non-conformance, no matter how trivial renders the will invalid. That makes no sense to me, but sense doesn't always come into it!

Also, coming to the 1837 act, the signature can not only be made in my presence, but it could be acknowledged instead. Does that not mean that Brian affirms that is his signature and that is good enough. Or is this some fancy technical legal term meaning something entirely different?

What that means is that if someone has already signed the Will before a witness arrives he can confirm that it's his signature, rather than having to sign it again. However, both of the two witnesses still need to be there at the time of the acknowledgment.

It seems quite clear that the Will, as it stands , is invalid. Whilst you may consider it a triviality of no consequence you do, in my opinion, at least have a duty to tell the testator that his Will's invalid. He can then decide whether to share your point of view and leave things as they are or to have the Will properly executed so as to make it valid.

It now looks to me that the will is valid. It was either signed in front of the two witnesses (self and ex-) and I have forgotten. Or more likely it was signed a short time before and acknowledged. As for the duty to inform him if there was a problem, I'm not sure that I see this. If he made a mistake, nobody is going to know, but I don't think he did now. But a brief email wouldn't do amy harm I guess. Unfortunately that's not possible - I don't even remember his name or what he looks like or anything really.

All for now

- K