Lack Of Due Execution

Lack of due execution

For a will to be valid, it must comply with strict formal requirements set out in the Wills Act 1837. If these requirements are not met, the will may be invalid, regardless of the testator’s intentions.

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What is due execution?

In broad terms, a will must:

be in writing
be signed by the testator (or someone else at their direction)
be signed with the intention of giving effect to the will
be witnessed by two witnesses present at the same time
be signed by those witnesses

When do execution problems arise?

Problems commonly arise where:

witnesses were not present together
signatures were added later
the testator did not intend to sign a will
remote or informal signing was attempted
procedures were rushed or poorly recorded

How is lack of due execution proved?

Evidence may include:

witness statements
solicitor or will-writer attendance notes
inconsistencies in signatures
physical inspection of the will

What is the effect of invalid execution?

If a will is found not to have been properly executed, it is invalid. This may result in:

an earlier will taking effect
the estate passing under the intestacy rules

How Hugh James can help

We advise on execution challenges involving both professionally drafted and homemade wills. Our focus is on identifying technical defects and achieving practical outcomes.

Key contact

Roman Kubiak TEP

Partner

Roman Kubiak is a Partner and Head of the market leading Private Wealth Disputes team. He advises across the whole spectrum of private wealth disputes, with a particular focus on high value, complex and cross-border disputes including: trust disputes, breach of trust claims and applications to remove trustees; will disputes, particularly those with an international element; claims under the Inheritance (Provision for Family and Dependants) Act 1975; and claims for equitable relief under proprietary estoppel, constructive trusts and resulting trusts.

Roman Kubiak is described by a client as “tremendously capable, he knows what he is doing. He’s a national figure.” Another source adds: “Roman is exceptionally knowledgeable, he is very pragmatic and very solution-oriented.”

Chambers & Partners

A natural and dynamic leader’, the ‘very impressive’ Roman Kubiak heads the firm’s Private Wealth Disputes team and is noted for his ‘deep knowledge of estates and trusts law’.

The Legal 500

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Lack of due execution