Wills Act Section 9: Testamentary Formalities

Introduction

Section 9 of the Wills Act 1837 sets the formal rules for making a valid will in England and Wales. It deals with the basics: the will must be in writing, signed by the testator (or someone else at their direction and in their presence), and properly witnessed. These rules aim to make a will reliable, reduce the risk of fraud, and provide a clear record of the testator’s wishes.

The modern text of s.9 (updated by the Administration of Justice Act 1982) also makes clear that the testator’s signature must be intended to give effect to the will, and that the witnesses must meet particular “presence” requirements. When these steps are missed, the will may fail, which can lead to disputes or an estate passing under an earlier will or intestacy.

What You’ll Learn

• The current legal requirements under Wills Act 1837 s.9 (as amended)
• What counts as a valid “signature” and why intention matters
• How witnessing works: “presence”, acknowledgment, and timing
• Who can witness, and the effect if a beneficiary (or their spouse/civil partner) witnesses (s.15)
• The value of a clear attestation clause and how it assists proof
• Common execution pitfalls and how to avoid them
• How courts have applied s.9 in leading cases
• Practical steps and checklists for supervising a will signing
• COVID-19 video-witnessing: what applied and when it ended

Core Concepts

What Section 9 Says Today

For a will to be valid under s.9 Wills Act 1837 (as substituted by the Administration of Justice Act 1982):

• It must be in writing.
• It must be signed by the testator, or by another person in the testator’s presence and by their direction.
• The signature must be made with the intention of giving effect to the will.
• The signature must be made or acknowledged by the testator in the presence of two or more witnesses who are present at the same time.
• Each witness must attest and sign (or acknowledge their signature) in the presence of the testator. They do not need to sign in each other’s presence.

Notes and practical points:

• “Writing” includes handwriting, typing, or printing.
• A “signature” can be a mark, initials, or another form that the testator adopts to sign, provided it is intended to authenticate the will.
• The signature does not have to be at the end, but placement should not create doubt about whether the document is meant to operate as a will.
• “Publication” (formally declaring a document to be a will) is not required.

Signature and Intention

• Intention: The signature must be made with the intention of giving effect to the will. Courts will look at context, timing, and any attestation to decide if that intention is present.
• Method: A shaky signature, initials, or a mark can be enough if intended to sign. If a third party signs on the testator’s behalf, this must be done in the testator’s presence and at their direction (preferably confirmed with clear wording in the attestation clause).
• Order of signing: The testator may sign before or after the witnesses arrive, but if signed earlier, the testator must acknowledge that signature in the simultaneous presence of both witnesses.

Witnessing and Presence

• Headcount: At least two witnesses are required.
• Simultaneity: The testator must sign or acknowledge their signature in the simultaneous presence of both witnesses.
• Witnesses’ own signatures: Each witness must then sign (or acknowledge their signature) in the testator’s presence. They do not have to sign at the same time as each other.
• “Presence”: Traditionally this meant physical presence, often judged by a “line of sight” or “conscious presence” approach. During the pandemic, a temporary order allowed remote presence by video (see Practical Applications), but this has ended.
• Competence: There is no statutory minimum age for a witness, but best practice is to use independent adults (18+) who are capable of later giving evidence.
• Beneficiaries as witnesses: The will remains valid, but any gift to a witness or to the witness’s spouse/civil partner is void (s.15). Independent witnesses avoid this issue entirely.
• Knowledge of contents: Witnesses do not need to read the will or know its contents; they are there to attest the act of signing or acknowledgment.

Attestation Clauses and Proof

• Attestation clause: Not required, but strongly recommended. A “standard” clause recording that the will was signed and witnessed in line with s.9 raises a presumption of due execution. This presumption can be rebutted with convincing evidence, but it sets the starting point in your favour.
• If there is no attestation clause (or if it is irregular), the probate registry may require affidavits or statements from the attesting witnesses to prove execution.
• Good practice: Use a clear attestation clause, identify the witnesses with names and addresses, date the will, and keep an execution note.

Key Examples or Case Studies

Re Groffman [1969] 1 WLR 733

• Context: The testator acknowledged his signature to two witnesses separately; they were not present at the same time.
• Finding: Invalid. Section 9 requires the testator’s signature to be made or acknowledged in the simultaneous presence of both witnesses.
• Practice point: Arrange for both witnesses to be present together when the testator signs or acknowledges.

Brown v Skirrow [1902] P 3

• Context: The testator signed in a shop. One witness did not have sufficient presence/attention to the act.
• Finding: Invalid. The requirement that the testator sign or acknowledge in the presence of two witnesses was not satisfied.
• Practice point: Keep the signing controlled and focused, with witnesses actually observing the act or acknowledgment.

Casson v Dade (1781)

• Context: The testatrix was in a carriage while the witnesses were outside; she could see through a window when signatures were made.
• Finding: Valid. “Presence” can be satisfied where there is a line of sight and the parties are aware of the act.
• Practice point: Presence can be practical and flexible, but do not push the boundaries—keep everyone in the same room wherever possible.

Re Chalcraft [1948] P 222

• Context: A very ill testatrix produced a signature that was arguably incomplete.
• Finding: Valid. The court accepted that the mark/signature was intended to give effect to the will.
• Practice point: Imperfect signatures may still work if intention is clear, but do not rely on that—plan signings carefully, particularly where the testator is unwell.

Sherrington v Sherrington [2005] EWCA Civ 326

• Context: Regular attestation clause on the will; later challenge on execution.
• Finding: The regular attestation clause raised a presumption of due execution. Strong evidence is needed to overcome it.
• Practice point: Always include a standard attestation clause; it reduces proof problems later.

Re Colling [1972]

• Context: Dispute about whether the formal requirements had been met.
• Finding: The court stressed strict compliance with s.9; minor departures can be fatal.
• Practice point: Treat s.9 as a checklist. If in doubt, re-execute correctly.

Practical Applications

• Use independent adult witnesses

  • Avoid any witness who is a beneficiary or the spouse/civil partner of a beneficiary (s.15 will void those gifts).
  • Use witnesses who can later give evidence if required.

• Set up the room and process

  • Place the testator and both witnesses together at the same time.
  • Confirm the testator understands the document and intends to sign their will.
  • Ask the testator to sign in front of both witnesses, or to acknowledge a prior signature in front of both.
  • Have each witness sign in the testator’s presence. They do not need to sign in each other’s presence, but it is simplest to do it there and then.

• Get the paperwork right

  • Use a standard attestation clause that reflects s.9 wording.
  • Include witness names, addresses, and occupations to help future proof.
  • Date the will. Number pages. Use the same ink for the signature and witness signatures.
  • Avoid post-execution alterations. If something must change, prepare a new will or a codicil executed with s.9 formalities.

• If the testator cannot sign

  • A third person may sign for the testator in the testator’s presence and at their direction. Record this in the attestation clause.
  • Best practice: the person signing on behalf should not also act as a witness, even though the statute does not forbid it.

• Video witnessing (COVID-19 period only)

  • The Wills Act 1837 (Electronic Communications) (Amendment) (Coronavirus) Order 2020 temporarily allowed witnessing by video for wills executed between 31 January 2020 and 31 January 2024 (subject to conditions).
  • That temporary measure has ended. For new wills, arrange in-person witnesses.
  • If relying on a video-witnessed will from that period, keep recordings and detailed attendance notes.

• Related checks

  • Testamentary capacity (Banks v Goodfellow) and knowledge and approval are separate from s.9 but often raised together. Keep clear file notes, especially where capacity might be questioned.
  • If execution errors are discovered after death, consider rectification (AJA 1982 s.20) where the error arises from a clerical slip or a failure to understand instructions. This does not cure all s.9 defects, so prevention is far better.

Summary Checklist

• Will in writing
• Testator signs (or another person signs in the testator’s presence and by direction)
• Signature intended to give effect to the will
• Testator signs or acknowledges in the simultaneous presence of two witnesses
• Each witness signs (or acknowledges signature) in the testator’s presence
• Independent adult witnesses; avoid beneficiaries and their spouses/civil partners
• Clear, regular attestation clause; date, page numbers, witness details
• No post-execution alterations; use a codicil or new will if changes are needed
• Keep execution notes; store the original safely

Quick Reference