EVERYDAY LAW: Signing and witnessing a will

In last week’s article mention was made of a holograph will (that is, a will written throughout in the handwriting of the testator). It should be pointed out that not all jurisdictions permit a holograph will to be made and in those jurisdictions that permit them, they must usually be signed by the testator. In Barbados, however, the Succession Act specifically exempts a holograph will from compliance with the formalities of Section 61 of the Act.  The effect of the provision is that a holograph will need not be signed by the testator. Of course, to probate such a will it will be necessary to prove that the writing is in fact the proper handwriting of the testator.Compliance Since most wills are in fact typed or printed, it is necessary to ensure compliance with the provisions of the Succession Act. Apart from the provisions of Section 61 it should be noted that the testator must be at least 18 years old unless he or she has been married. Section 61 of the Succession Act states that:-(1) No will shall be valid unless-  (a)    it is in writing;  (b)    it is signed at the foot or end thereof by the testator, or by some person in his presence and by his direction; (c)    the signature is made or acknowledged by the testator in the presence of each of two or more witnesses, present at the same time and each witness shall attest by his signature the signature of the testator in the presence of the testator, but no form of attestation shall  be necessary. The above provisions are very important and the most insignificant breach of the provisions of the section can result in the will being declared invalid.In writingExcept for privileged wills all wills must be in writing.  A will may be handwritten, typed or printed.  The will may be signed by the testator or he may direct another person to sign the will on his behalf in his presence.  Many persons who sign legal documents are not sure how to sign.  Some people write out their names in full in the belief that anything else is invalid.  In relation to wills the legal principle is that a testator may make any kind of mark, provided it is intended to be his /her signature.  Therefore the initials of the testator have been held to be a valid signature; an ink thumb mark has been held to be sufficient in another case; and in yet another case the words “your loving mother”.  Of course it is recommended that you use your normal signature when you sign your will. A person may sign on behalf of the testator but the testator must be physically present and must request the person to sign on his behalf. The person signing on behalf of the testator may be one of the attesting witnesses and may sign his/her own name or that of the testator. Section 61(b) above requires the testator’s signature to be at the foot or end of the will. There was a time when the testator’s signature had to be literally at the foot or end of the will. Section 61(3) of the Act makes it clear that this section is not to be interpreted literally. For example, even if there is a blank space intervening between the concluding words of the will and the signature, the will will not be invalid. Two witnesses The signature of the testator must either be made or acknowledged by him/her in the presence of two witnesses both present at the same time.The law permits the testator to sign in the absence of the witnesses.  However in those cases the signature of the testator must be validated by a later of acknowledgement. For there to be a valid acknowledgement the will must have been signed already; the signature must be visible at the time of the acknowledgement; and the signature must have been acknowledged by words or conduct. Two or more witnesses must subscribe the will in the presence of the testator.  The witnesses must attest and sign the will after the testator has signed or acknowledged and they must sign in the presence of the testator.•Cecil McCarthy is an attorney-at-law. Send your letters to: Everyday Law, Nation House, Fontabelle, St Michael. Send your email to [email protected]