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Validity of wills — SQE1 Wills question

A worked single-best-answer question on validity of wills, with why each wrong option is wrong — the way SQE1 traps candidates.

Validity of wills

Harold, aged 80, signed his will at his kitchen table while his neighbour, Priya, watched. Priya then signed the will as a witness and went home. An hour later Harold's friend, Tom, arrived. Harold showed Tom the will, pointed to his own signature and said 'that is my signature on my will', and Tom then signed as a witness in Harold's presence. Neither witness is a beneficiary, and Harold died last month.

Which of the following best describes whether Harold's will was validly executed?

  1. AThe will is valid, because each witness either saw Harold sign or received his acknowledgement of his signature.
  2. BThe will is invalid, because Harold's signature was not made or acknowledged in the presence of two witnesses present at the same time.
  3. CThe will is valid, because each witness signed in Harold's presence and a witness need not sign in the presence of the other witness.
  4. DThe will is invalid, because a testator's acknowledgement of an existing signature can never take the place of signing in front of the witnesses.
  5. EThe will is valid, because a will that appears to be duly signed and witnessed is conclusively presumed to have been properly executed.
Show answer and reasoning
B is the best answer. Section 9(c) Wills Act 1837 requires the testator's signature to be made or acknowledged in the presence of two or more witnesses present at the same time. Priya and Tom were never together when Harold signed or acknowledged his signature, so the will fails for want of due execution, even though each witness signed in Harold's presence as s 9(d) requires.

Rule: A will is validly executed only if the testator's signature is made or acknowledged in the presence of two or more witnesses present at the same time, each of whom then attests and signs (or acknowledges) in the testator's presence.

  • A Signing before one witness and acknowledging to another separately does not satisfy s 9(c); both must be present at the same time. (wrong rule)
  • C It is true that the witnesses need not sign in each other's presence (s 9(d)), but that does not cure the failure under s 9(c). (answers a different question)
  • D Acknowledgement of a signature already made is expressly permitted by s 9(c); the defect here is that the witnesses were not present together. (wrong rule)
  • E The presumption of due execution is rebuttable; here the facts show that s 9(c) was not complied with. (wrong rule)

Source: Wills Act 1837, s 9

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