The law states that the testator’s signature must be added or acknowledged by them in the presence of two or more witnesses simultaneously, who must then attest the Will and add their own signatures to it.
The definition of what a signature involves was a cause for deliberation in the case of Payne v Payne .
John Payne made two Wills 14 years apart (1998 and 2012). The first appointed his second wife as executor, leaving most of his estate to her. In doing so, he wrote his name in the signature field above the space designated for his witnesses to add their signatures and details. However, both witnesses wrote this information using capital letters which meant that their signatures were not presented in the generally accepted format.
In the 2012 Will, John appointed his son from his first marriage, Thomas, and his grandson as executors, leaving most of his estate to them. Upon Mr Payne’s death, his second wife argued that the 2012 was not validly executed.
The judge found that neither Will was valid, dismissing the executors of the 2012 Will as unreliable witnesses and ruling out any presumption of due execution on their part as a result.
The matter of signatures was the deciding factor in determining the invalidity of the 1998 Will. Mr Payne’s second wife claimed that the printing of the witnesses’ names in capital letters did not classify as signatures.
The witnesses refused to submit the Will as evidence and the judge ruled that the document had not been properly attested. As a consequence, the Will was deemed to be invalid and Mr Payne regarded as having died intestate.
The requirements for attestation date back to the 1837 Wills Act. The phraseology used is ‘attest and subscribe’. The language was modernised to read as ‘attest and sign’ in the Administration of Justice Act 1982. However, this meant that the mere writing of their name was sufficient to be considered an attestation and that a signature defined as an identifiable and unique personal mark was not a necessity.
On this basis, the original ruling regarding the 1998 Will was appealed and overturned.
