12 Trusts and Estates Law & Tax Journal September 2013

An unresolved question

David Schmitz is a barrister at Ten Old Square

T he principles governing the making and the attestation of wills were set out in 1837 and

were brought up to date in 1982 by the Adminstration of Justice Act, when the Wills Act 1837 was amended. Notwithstanding that a somewhat basic point is still open to argument, namely whether when a testator acknowledges their signature to the witnesses (as opposed to signing it in front of them), does the will have to be visible to the witnesses at the moment of the acknowledgment even if each of the witnesses has previously seen the signature?

Let us assume the following facts:

A prepares a will and invites B and C to come to sign it as witnesses. B and C arrive separately, however, and B leaves before C arrives.

In such a case, the will is clearly invalid because the testator has neither signed it nor acknowledged their signature in front of the witnesses at a time when all three are present.

But now let us assume that after the will has been signed as above, the following occurs:

A invites B and C out for a drink, and when they are all together, A says to them, ‘Thank you so much for witnessing my signature on the will. Drinks are on me,’ whereupon B and C each say to him ‘It was a pleasure to sign.’ This conversation, however, takes place in a public house, the testator having left the will at home.

It is, of course, clear that an invalid will can be made valid if the testator acknowledges their signature to the witnesses when all are present, and if in turn the witnesses then

acknowledge their signatures to the testator (though the acknowledgment by one witness need not be done in the presence of the other). What is not clear, however, is whether in such a case there is a requirement that the will must invariably be present while these signatures are being acknowledged. That is the question which this article addresses.

This article will, in brief, submit as follows:

• Some old dicta that, at first glance, support the contention that the witnesses must always be able to see the testator’s signature at the very moment when the testator acknowledges their signature, and that by implication the will must necessarily be present at that time.

• However, these dicta must be viewed in both their textual and historical contexts. From these, two things appear. Firstly, the court was very unlikely to have thought it necessary to consider a situation where each of the witnesses had seen the testator’s signature at some point in the past and separately from one another. This was because, before 1983, there was hardly any possibility that a signed will that had been seen by the witnesses beforehand and separately could later have been validly attested by them, for reasons for reasons set out below. Secondly, the court was concerned to make a totally different point, namely that the witnesses needed to have seen the testator’s signature at some time before the testator’s acknowledgment and before they themselves signed the will, not

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‘The existence of a perceived danger of substitution in some cases, and the desirability of reducing the need for oral evidence in consequent litigation, can justify the inference that the draftsman did intend to impose a requirement for the will to be present.’

David Schmitz considers whether the will must be present when a testator acknowledges their signature to witnesses

Trusts and Estates Law & Tax Journal 13September 2013

necessarily at the very time of the acknowledgment.

• Only after the Administration of Justice Act 1982 amended the Wills Act 1837 did it become a practical possibility for witnesses to make a valid attestation when they had seen the will separately in the past, and only then therefore did the need for the presence of the will become a question of practical importance.

• The question, accordingly, is not governed by authority.

• The legislation does not, on a literal reading, require the presence of the will when the signatures of the testator or the witnesses are being acknowledged. Furthermore, a number of anomalies would arise if it were to be held that the legislation did impose this requirement.

• Nonetheless, because it is easy to imagine circumstances where attestation in the absence of the will would enable some document other than the testator’s intended will, to be attested as their will, and because the prevention of this has long been recognised as a purpose of the legislation, it is still probable that the court would read the legislation as requiring that the will be present at the time of the acknowledgment of the parties’ signatures.

Pre-1983 lawSection 9 of the Wills Act 1837 originally provided that:

No will shall be valid unless it shall be in writing, and executed in manner hereinafter mentioned; (that is to say) it shall be signed… and such signature shall be made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and such witnesses shall attest and shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary.

The section said (and indeed still says) nothing about what is required in order to constitute a good acknowledgment. Moreover, it does not expressly say anything about the order in which the signatures of the testator and the witnesses need to be written.

Various authorities have, however, decided that an intricate dance has to be performed if a will is to be executed validly. Thus, before the law changed on 1 January 1983, it was settled, firstly, that the witnesses must have seen or had the opportunity of seeing the testator’s signature when the testator acknowledged it, and secondly that the witnesses’ own signatures must have been written after the testator’s signature or acknowledgment and not before. See Hudson v Parker

[1844] as to both points, Re Gunstan’s Goods [1881] as to the first point, and Hindmarsh v Charlton [1861] as to the second.

The reason why the witnesses needed to see the testator’s signature (or needed to have had the opportunity of seeing it) was that the statute required (and still does require) them to witness the testator’s acknowledgment of their signature, as opposed to their acknowledgment of the will. Acknowledgment of the will alone could be a mere acknowledgment of an unsigned document, and a document which is unsigned cannot be a will. See Hudson at p16:

[The witnesses] might swear that the testator said he acknowledged a signature, but they could not depose to the fact that there was an existing signature to be acknowledged.

The reason why the witnesses needed to sign after the testator’s signature or acknowledgment is again to be found in Hudson, where Dr Lushington observed that the statute requires not merely that the witnesses sign the will, but that they attest to it by signing it. Because no witness can, by signing, attest to something that has not yet happened, it follows that the witnesses’ signatures can only be good attestations if they have been made after the event which is being attested, ie after the testator’s signature or the testator’s acknowledgment of their signature. If the witnesses’ signatures precede

that of the testator, there can be no attestation (Hudson at p27).

Subject to the following important qualification, these principles are still good law. That qualification is that since 1983 there has been a means by which a will can be made valid, notwithstanding that the witnesses have signed before the testator.

Prior to the 1982 changes, whereas a will did not have to be signed by the testator in front of witnesses – acknowledgment of the testator’s

signature to them was sufficient – the same did not apply to witnesses. If they signed before the testator’s signature or acknowledgment had taken place, they could not cure this by acknowledging their own signatures later on. If the witnesses signed too soon, the will was incapable of repair unless the testator acknowledged their signature to the witnesses in each other’s presence and the witnesses in turn signed all over again. Failing that, the will was invalid.

Thus, in Re Colling [1972] a will was invalid in circumstances where:

• the testator had written part of their signature in front of two witnesses, one of whom was a nurse;

• the nurse was then called away and while she was away the testator completed his signature;

• the witness who was not the nurse then signed;

• the nurse returned and the testator acknowledged his signature to both witnesses; and

• the nurse then signed.

The testator’s incomplete signature in front of the two witnesses was not sufficient to amount to a valid execution of the will; the completed signature was not validly witnessed because the nurse did not see him do it, and the testator’s acknowledgment of the signature did not suffice, even though it was made in the presence of both witnesses, because

Acknowledgment of the will alone could be a mere acknowledgment of an unsigned document, and a

document which is unsigned cannot be a will.

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one of the witnesses had signed before the acknowledgment rather than afterwards.

It was to stop injustices, such as those in Colling, that the 1982 changes were made.

How does the pre-1983 law affect the question in hand?The pre-1983 law is relevant to the question posed here because it provides the context and limits the effect of dicta which, taken on their own, might seem to hold that the will must

always be present when the testator acknowledges their signature.

As already noted, before 1983 there was little practical possibility that a signed will, shown by a testator first to the witnesses separately and subsequently acknowledged to them both together, could ever have been valid. Such a will would have failed for reasons having nothing to do with whether the will happened to be present at the time of the joint acknowledgment by the testator to the witnesses. Therefore, the question of whether the presence of the will mattered of itself was not a question that would have occurred to the judges before 1983.

To see why there was little practical possibility of the will being valid where the witnesses had seen the will separately before the testator’s acknowledgment, one need only note that in the general way of things, where a person is asked to witness a document, they will invariably sign immediately after they are shown the document. Therefore, whenever witnesses are separately shown a signed document before a testator later acknowledges it to them together, the signatures of the witnesses will already have been placed on the document. Before the 1982 amendments to s9, if the witnesses had signed the will before the acknowledgment to them jointly had been made by the testator, the will was all but irredeemably invalid as it was not possible for the witnesses to rescue the position by acknowledging

their signatures to the testator after the testator had acknowledged their signature to them. The question of the presence of the will at the time of acknowledgment would not have arisen because the will would have been invalid whether it was present or not.

The practical impossibility, before 1983, of a will ever being made valid where it had been shown to the witnesses separately before the testator’s acknowledgment of their signature to them in each other’s presence, ought to govern

the interpretation of dicta that might otherwise be read as requiring the presence of the will whenever the testator, instead of signing the will in front of the witnesses, acknowledges their signature to them.

Pre-1983 casesIn Hudson, Dr Lushington held:

What is the plain meaning of acknowledging a signature in the presence of witnesses? – what do the words import but this? – ‘Here is my name written, I acknowledge that name so written to have been written by me; bear witness;’ how is it possible that the witnesses should swear that any signature was acknowledged unless they saw it? (Emphasis added).

Pausing here, the words printed in italics might, out of context, be taken to provide that the witnesses must have seen the document at the moment of acknowledgment. However, as appears from the passage that follows, Dr Lushington’s true concern is not that the will be in front of the witnesses at the time of the testator’s acknowledgment, but rather that the witnesses should have had some basis for saying that the will which the testator acknowledged was a will that bore their signature at the time of the acknowledgment. Dr Lushington is not therefore prescribing the time when the witness must have seen the signature, beyond saying that they must have seen it before they themselves signed:

They [ie the witnesses] might swear that the testator said he acknowledged a signature, but they could not depose to the fact that there was an existing signature to be acknowledged (Emphasis added).

In Gunstan, Brett LJ held as follows in the Court of Appeal:

When you find that in order to make the signature sufficient the witness must see the person sign, so when a signature is to be acknowledged they must see that there is a signature, and the testator must then in their presence say something equivalent to ‘That is my signature’; so that if they do not have the opportunity of seeing the signature, even if he say before them, ‘My signature is in this instrument,’ that will not do…

It has been brought to this, where the witnesses cannot see, have no opportunity of seeing, the signature, it is immaterial what the testator says, there cannot be an acknowledgment; but that when the signature is there and they see or have the opportunity of seeing it, then if the testator says this is my will or words to that effect, that is sufficient acknowledgment, although he does not say this is my signature.

At first glance, these words, too, give the impression that the signature must be visible to the witnesses at the time of the acknowledgment. However, on the facts of Gunstan the witnesses had never seen the testatrix’s signature, she having covered it with blotting paper at the time of the supposed attestation. The possibility of the witnesses having separately seen the signature beforehand was not discussed because it did not arise.

More recently it was held in Re Groffman [1969] that (paras 111-12):

The question, as I have indicated, is whether the testator acknowledged his signature in the presence of [the witnesses], those two witnesses being present at the same time… It seems to me that the authorities establish that the signature of the testator must be on the document at the time of acknowledgment (which, I think, it was), and that the witnesses saw, or had an opportunity of seeing, the signature at that time –in other words, at the time of acknowledgment. (Emphasis added).

The question of whether the presence of the will mattered of itself was not a question that would have occurred to the judges before 1983

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Groffman, too, was not a case, however, where the will failed because of its absence at the time of the acknowledgment. It failed because the only acknowledgement that the testator made in the presence of both witnesses was made at a time before they had ever seen or had the opportunity of seeing the will, let alone the testator’s signature. The passage is therefore obiter as regards the present question. It is therefore submitted that judge’s choice of tense – ie the imperfect tense in ‘the witnesses saw or had the opportunity of seeing’ instead of the perfect tense, as in ‘must have seen or have had the opportunity of seeing’ – should not be taken as having any significance.

Present lawFollowing the amendments that s17 of the Administration of Justice Act 1982 made to s9 of the Wills Act, the law can be summarised as follows:

• The testator still needs to sign or acknowledge their signature in the presence of both witnesses present at the same time.

• After the testator has signed or acknowledged their signature to the witnesses present at the same time, the witnesses must sign the will in the presence of the testator or they may instead (and this is the key) acknowledge their signatures in the testator’s presence.

• The witnesses need not be in each other’s presence when they sign or acknowledge their signatures to the testator.

• In order that the witnesses may validly attest the will, whether by signing in front of the testator or acknowledging their signatures, they must at some time beforehand have seen or had the opportunity to see the testator’s signature.

Does the will always need to be present when the testator acknowledges their signature?No post-1983 cases consider the question. However, the general approach is set out by Judge Collyer QC in Couser v Couser [1996]:

The possibilities which the section raises are various. The will can validly

be signed by the testator in the absence of the witnesses, but then shown by the testator to the two witnesses with the testator acknowledging the testator’s signature in their presence. That acknowledgment by the testator must be in the presence of them both at the same time. However, and rather curiously, it would in fact be a perfectly valid execution if both witnesses then left and each severally

or separately returned on a subsequent occasion then to attest and sign the will in the presence of the testator or, alternatively, it would be sufficient that they had already signed the will and that they came back subsequently and acknowledged their signature to the will.

… [The] section is clearly directed in the first place to creating the safeguard that there shall be two witnesses, and the further safeguard –and it is a significant safeguard –that the two witnesses must both at the same time see the testator either sign or acknowledge his signature on the will. There must be a point in time, therefore, when all parties to the transaction, the two witnesses and (most importantly) the testator, are concerned in it together simultaneously, but the evidencing of their joint activity can be made subsequently and separately.

The section seeks, therefore, to avoid formalities and technicalities, but nevertheless to preserve the essential safeguard against fraud of two witnesses and of the two witnesses having to function together with the testator, albeit that they may subsequently evidence what they have done by each witness acknowledging his or her respective signature. (Emphasis added).

How, then, should the present question be answered? The following arguments support the view that, so long as each of the witnesses has seen or had the opportunity of seeing the signature at some time in the past, there is no requirement that they should see

or have the opportunity of seeing it at the time when the testator is acknowledging the signature to them when they are all present together, as:

• No such requirement is expressed in the statute.

• The word ‘acknowledge’ does not, as a matter of ordinary language, require the presence of the thing

that is being acknowledged, as in ‘I acknowledge the baby you saw me holding yesterday’.

• It has been observed that ‘At the end of the transaction, the witness should be able to say with truth, “I know that this testator or testatrix has signed this document”’ (per Gorrell Barnes J in Brown v Skirrow [1902]). There is no need for a rule requiring the presence of the document at the time of the acknowledgment, in order to enable the witness truthfully to make that assertion.

• The rejection of a requirement for the will to be present does not remove the more fundamental requirement that the witnesses ‘function together with the testator’. The testator would still have to acknowledge their signature to the witnesses in their joint presence and after that the witnesses would still need either to sign the will in front of the testator or alternatively to acknowledge to the testator a signature that they had earlier made.

• It is settled law that the witnesses need not actually see the signature on the will, so long as the signature was present and so long as they could have seen it unimpeded if they had chosen to look: Daintree v Butcher and Fasulo [1888]. If a will can be valid notwithstanding that the witnesses never saw the testator’s signature, it would be

The rejection of a requirement for the will to be present does not remove the more fundamental

requirement that the witnesses ‘function together with the testator’

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strange if, notwithstanding that the witnesses had actually seen the testator’s signature, a will were rendered invalid, simply because the will was not present at the time of the testator’s acknowledgment.

• If a requirement were imposed, there would be further anomalous consequences. For example a will would be invalid:

• if it were signed by the testator, then shown separately to each of the witnesses within minutes of one another, then placed in a drawer and then acknowledged to the witnesses together a few minutes thereafter; and

• more strikingly, if an irregularity in execution were noticed and the parties were later convened without the will being present, for the express purpose of regularising the position by means of acknowledgments of their earlier respective signatures.

A sting in the tail – the need to prevent substitutionNotwithstanding the above, however, the court would probably hold that the presence of the will is necessary at the time when the signatures of the parties are being acknowledged. The reason is that if no such requirement were read into the statute, the statute would fail to address a mischief which it was enacted to remedy.

The law requires that a will be made in the presence of witnesses and that the witnesses make or acknowledge their signatures to the testator in order to protect the testator from the risk that the attested ‘will’ might not be the will that they intended to make, but might instead be some other script that has been substituted for the document, which they thought that they were executing. Thus, in Newton and Thomas v Clarke [1839], it was said:

The object of the Act is to prevent the substitution of another paper, and that no fraud should be practiced on the deceased.

It is easy to imagine a situation where a fraudulent substitution can be effected if the testator does not have an opportunity to see the will when they

and the witnesses are acknowledging their signatures. For example:

• The testator may have signed a purported will that had been misdescribed to them as some other type of document. Later, and in the testator’s absence, two persons may have been induced to countersign, again without knowledge that the document was a will. All three could then later be induced to mention their signatures to one another in terms that amount to an acknowledgment. Without the presence of the will, there would be virtually no chance of detecting the fraud. The acts of acknowledgment would be unlikely to reveal it because it is only the signatures that must be acknowledged, not the document, there being no requirement that the witnesses should know anything about the document, even that it is a will (Smith & Smith v Smith [1869]). The testator may have signed a will, but a different draft may, by accident or design, have been substituted for the will which they intended to make. Once again, witnesses might countersign in the absence of the testator, and an acknowledgment of the signatures might complete the will in circumstances where the mistake or fraud remained undetected. For example, where a series of drafts has been prepared and rejected, and where the signing takes place, not in the relative calm of a solicitor’s office, but at the testator’s home and in their final hours, the possibility of confusion is all too real. In such circumstances, a requirement that the will be present at the time of acknowledgment would make it more likely that a mistake would be discovered.

• (The testator and the witnesses may have signed two wills, the testator intending one to supersede the other. If the will is not present when the signatures are acknowledged, it would be impossible to tell which script was the subject of the acknowledgment.

Of course these considerations do not apply to the situation postulated at the beginning of this article, where

there is no possibility of confusion about the document that is meant to stand as the testator’s will. Nevertheless, a set of assumed facts, in which there is no such danger, cannot decide the essential question, which is whether Parliament intended there to be a general rule. The existence of a perceived danger of substitution in some cases, and the desirability of reducing the need for oral evidence in consequent litigation, can, it is submitted, justify the inference that the draftsman did intend to impose a requirement for the will to be present.

There are, of course, counter-arguments against this approach. The 1982 amendments permitting acknowledgments of the signatures of the attesting witnesses must necessarily require the court, more often than hitherto, to consider evidence of exactly what happened when the will was signed and attested. That being the case, the court might adopt a non- technical approach and decide instead to hear all of the evidence and then make a finding of fact as to whether or not an adequate acknowledgment was made in all the circumstances of the case. However, because the whole purpose of the statutory formalities is to minimise the role of later evidence, the court would probably prefer to read a hard and fast rule into the statute and therefore to require the presence of the will at the time of the acknowledgment. It is submitted that for the sake of minimising uncertainty, this is the better view. n

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Brown v Skirrow [1902] P 3 Re Colling [1972] 3 All ER 729Couser v Couser [1996] 3 All ER 256Daintree v Butcher and Fasulo (1888) 13 PD 102, 103Re Gunstan’s Goods (1882) 7 PD 102Re Groffman [1969] 2 All ER 108Hindmarsh v Charlton (1861) 8 HLC Hudson v Parker (1844) 1 Rob Ecc 14Newton & anor v Clarke (1839) 2 CurtSmith & Smith v Smith (1869) LR 1 P&D 143