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When does a signature not have to be a signature?


Strict rules govern the execution of Wills. For these to be valid the person making their Will must sign their name in the presence of two witnesses who must also "sign" in the words of the Administration of Justice Act 1982. A recent Court of Appeal judgment (Payne v Payne 2018) suggests that the court's view of what comprises a signature might differ from what most people would expect.

John Payne made two Wills in 1998 and 2012. The 1998 Will left most of his estate to his second wife, Kim. The 2012 Will appointed John's son and grandson from his first marriage as his executors. We often find that at the heart of probate disputes is a deceased with two or more partners and children from different relationships.

The original trial judge determined that the 2012 Will was not validly executed, finding that the son and grandson were unreliable witnesses. As the 2012 was not valid John's estate would normally have been dealt with under his 1998 Will.The trial judge, however, found that the 1998 was not valid either, meaning that John's estate would be distributed under the Intestacy Rules.

On the 1998 Will John had written his name in a space reserved for his signature. Underneath his name on the pre-printed form were spaces for the two witnesses to each write their name, address and occupation. Each provided this information in block capitals. There were no witness signatures in the common sense of the word.

Those representing Kim also failed to produce the original 1998 Will, contrary to the court rules, and produced no evidence from witnesses regarding the circumstances in which the 1998 Will was executed.

Kim appealed to the Court of Appeal.At the appeal one of the witnesses to the 1998 Will gave oral evidence that he was present at John's house with Kim and a friend of the couple who also acted as a witness. They all sat around a table, John signed first with him and the other witness filling in their details.

The Court of Appeal referred back to the Wills Act 1837 which continues to govern the requirements for a valid Will. This provides for witnesses to "attest and subscribe", only the testator needing to "sign" the Will. The Court of Appeal concluded that the 1982 Act did not intend to amend this provision, simply replacing the archaic term "subscribe" with "sign". As such the witnesses writing their names, rather than signing, was sufficient. The 1998 Will was valid and John's second wife was entitled to benefit from his estate.

So when is a signature not a signature? It seems when a witness prints their name on a Will or, perhaps when the Courts decide that the English language needs to be stretched to reach the right decision.

For further information relating to the points raised in this article, please contact Andrew Bogle, Senior Solicitor in our Disputed Trusts & Estates team.

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Please note this information is provided by way of example and may not be complete and is certainly not intended to constitute legal advice. You should take bespoke advice for your circumstances.


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