A valid Will – it’s how – not where…

In the case of Wilson v Lassman, the High Court has upheld the validity of a will that was witnessed on the bonnet of the testator’s car.

The background to this case was a disgruntled son who had been disinherited by his father’s will. He wanted to bring a claim out of time under the Inheritance (Provision for Family and Dependants) Act 1975, but latterly amended his claim to raise the issue of whether the will was valid at all under s9 Wills Act 1837.

The Act provides that for a will to be valid:

• It must be in writing and signed by the testator (the person making the will); and
• It appears that the testator intended by his signature to give effect to the will; and
• The signature is made or acknowledged by the testator in the presence of two or more witnesses, present at the same time; and
• Each witness either attests and signs the will or acknowledges his signature in the presence of the testator.

It was accepted in this case that the testator (Mr Wilson) had signed his will (before he met up with the witnesses – Mr McKinley and Mr Byrne) and that he intended to give effect to it by presenting it to them to be witnessed.

The issue is whether both witnesses were present at the same time when Mr Wilson acknowledged his signature to the will. Having heard evidence from both witnesses and the son/claimant in this matter, the High Court accepted that the sequence of events was as follows – the two witnesses had arranged to meet so that one could do some repairs to the car of the other. While one witness was working on the car, Mr Wilson, who lived at a neighbouring property to where the repairs were being done, waved them both over and asked then to witness his will, which they did, on the bonnet of his car!

So, it does not matter in this case that the testator had already signed his will, that he didn’t know the witnesses personally or that they signed it on the bonnet of the car – the relevant factor was that the testator and both witnesses were present at the same time throughout the process.

For a will to be valid in this country, it is vital that the steps set out in the Act are followed – misery and litigation may follow for the families of those that don’t!