Section 9 of the Wills Act 1837 sets out the requirement for a valid Will.
Contesting a will on the basis of lack of valid execution means arguing that the will was not made in accordance with the legal formalities required for a valid will. In England and Wales, the Wills Act 1837 sets out strict signing and witnessing requirements that must be followed when executing a Will.
Even small procedural errors can invalidate the entire document. For example, a missing signature or an incorrect witnessing procedure might render a will void, no matter how clearly it expresses the deceased’s wishes. Given the high stakes, understanding these formal requirements – and recent temporary changes to them during COVID-19 – is important when assessing if a Will can be challenged for lack of proper execution.
Legal formalities for a valid Will
Under the Wills Act 1837 (as it stands today), a will must satisfy several formal requirements to be valid:
- Written document: The will must be in writing.
- Signature of testator: It must be signed by the person making the will (the testator), or by someone else in the testator’s presence and at their direction. The testator’s signature should indicate an intention to give effect to the will’s provisions.
- Two witnesses present: The signature must be made or acknowledged by the testator in the presence of at least two witnesses present at the same time. In practice, this means the testator and both witnesses should all be together (in the same room or clearly seeing one another) when the signing occurs.
- Witnesses to attest: Each witness must either attest and sign the Will or at least acknowledge their signature in the testator’s presence. (They need not sign in each other’s presence, but each must sign in front of the testator.)
- Witness eligibility: Witnesses should be independent adults. While an executor can act as a witness, a witness should not be a beneficiary (nor the spouse of a beneficiary) under the Will. If a witness (or their spouse) receives a gift in the will, that gift is void by law, although the rest of the will remains valid. This rule prevents undue influence or conflicts of interest without invalidating the whole will.
These formalities serve important protective functions: they provide clear evidence that the Will is genuine, intended, and properly executed. If any of the above requirements is not met, the will may fail for lack of valid execution.
Lack of valid execution as a ground for challenge
“Lack of valid execution” is one of the clearest grounds on which to challenge a Will’s validity. Essentially, it means the Will was not signed and witnessed in accordance with the law. If a will was not signed by the testator, or if it did not have two qualifying witnesses present at the signing (with all parties observing the signing), then it does not meet the Wills Act formalities and can be declared invalid. For example, a Will signed with only one witness (or none at all) is invalid on its face – it cannot be admitted to probate because the execution did not fulfill the legal requirements. Similarly, if the witnesses signed on a different occasion without the testator present, or signed a different document, those would be fatal errors in execution.
Challenging a Will for lack of due execution typically involves examining the circumstances of how the Will was signed. Common scenarios that give rise to this ground include situations with DIY wills or informal signing arrangements where proper procedure wasn’t followed. For instance, all parties must be present together when the will is executed, and a failure in this “same room, same time” requirement can invalidate the Will.
If someone suspects a will is invalidly executed, they (through their solicitor) will look for evidence such as the document itself (to see if signatures are missing or the attestation clause is incorrect) and witness testimony. In a dispute, the people who witnessed the will may give statements about whether they were present with the testator and each other, and a solicitor’s file (if a lawyer drafted the will) can confirm the signing formalities. Such evidence is crucial – a challenger must prove the execution defect on the balance of probabilities, but once shown (e.g. a witness admits they actually didn’t see the signing), the Will is usually deemed invalid.
If a Will is declared invalid due to improper execution, the estate will be distributed under the most recent earlier valid will (if one exists) or under the intestacy rules (as if no valid will was made). There is no discretion for a court to “save” a will that fails the required formalities under current law – even a clear expression of wishes is ineffective if the will was not duly signed and witnessed. This strict approach has historically been followed to maintain certainty and prevent fraud, but it has also led to harsh outcomes when honest mistakes occur.
The COVID-19 pandemic and remote Will witnessing
One notable development in the area of will execution arose from the COVID-19 pandemic. Under normal rules, the need for two witnesses to be physically present at the same time as the testator can pose practical difficulties – something that became especially apparent during pandemic lockdowns and social distancing measures. Many people were shielding or isolating and could not safely have two individuals in the same room to witness a signature. In response to these unique challenges, the government introduced temporary legislation in 2020 to relax the in-person witnessing requirement.
Under this emergency measure, the definition of “presence” in the Wills Act was expanded to include virtual presence via live video link. In other words, from 31 January 2020 onward, a Will could legally be witnessed over a real-time video conference if an in-person signing was impossible. This change, enacted in July 2020 with retrospective effect, allowed people to execute Wills via platforms like Zoom or Skype, provided that the essential conditions were met. The testator still had to sign the Will (or acknowledge their signature) on camera, and two witnesses had to see the act in real time and then sign the same document themselves, also on camera.
Pre-recorded videos were not allowed – the law required a live visual link, so that the integrity of the process (and the opportunity for interaction) was preserved. Best practices included recording the video-signing session and ensuring the Will was signed by all parties within a short time frame (such as 24 hours), since the witnesses needed to sign the original paper document (circulated to them) after seeing the testator sign. In all other respects, the usual formalities still applied; the remote method was merely a temporary alternative way to satisfy the “presence” of witnesses.
This ability to witness wills remotely was always intended as a last resort for extraordinary times. Government guidance stressed that people should continue to use conventional in-person witnessing whenever possible.
The measure also raised some concerns in the legal community about potential for fraud or undue influence – for example, the risk that someone off-camera could be coercing the testator, or that technical glitches might cast doubt on what was actually seen. Because of such concerns, as well as the improving public health situation, the video-witnessing provision was explicitly made temporary. It applied to wills made from 31 January 2020 up to (and including) 31 January 2024. After that date, the law would revert to the traditional rules unless further extended.
In fact, the remote witnessing law was not extended beyond 31 January 2024. The Ministry of Justice announced that the temporary amendment to the Wills Act would lapse as scheduled, and no further extensions would be granted. As of 1 February 2024, it is once again not permissible to witness a will via video link in England and Wales. Any Will executed through video witnessing during the valid period (2020–2024) remains legally valid, but new Wills must now be executed with two witnesses physically present, in full compliance with the original 1837 Act. The pre-COVID formalities have been reinstated in full, and a Will signed only over Zoom today would not meet the legal requirements and could be challenged as invalid for lack of proper execution.
For those considering challenges, it’s worth noting that a Will signed during the pandemic is not automatically invalid just because it was done by video — such a will is valid if it followed the temporary law in force at the time. However, if the proper procedures for remote witnessing were not strictly followed (for instance, if the witnesses did not actually see the signing, or if the Will was never signed by the witnesses at all), then the Will could still be invalid. In any dispute over a 2020–2024 will, you would examine whether the execution met either the traditional requirements or the specific conditions of the video witnessing legislation. As always, detailed evidence (affidavits from witnesses, video recordings, timeline of signing, etc.) would be crucial to establish whether the Will was validly executed or not.
After COVID: are the emergency measures still in place?
With the expiration of the remote witnessing provision, we are essentially back to the status quo ante. The law once again demands strict compliance with in-person signing and witnessing. Many legal professionals have noted that this reversion, while restoring certainty, may feel out of step with modern expectations and technological capabilities. The pandemic experience demonstrated that wills could be made in new ways, and it highlighted the need for the law to adapt to contemporary society. Indeed, there have been ongoing discussions about modernising wills law even before COVID-19, which the pandemic then accelerated.
The question often asked now is: will there be permanent reforms to allow less rigid forms of execution? In July 2017, the Law Commission for England and Wales had launched a broad consultation on reforming wills law (including considering electronic wills and updating the witnessing rules), though that project was paused during the pandemic. Following the pandemic, those efforts resumed, and major reforms have been proposed in a recently published Law Commission report.
Modern reforms on the horizon: electronic Wills and dispensing powers
In May 2025, the Law Commission released its final report “Modernising Wills Law,” which recommends the most significant overhaul of will formalities in over a century. While these changes are proposals and not law as of this writing, they indicate the likely direction of future reform. Notable recommendations include:
- Electronic Wills: Embrace the digital age by allowing wills to be made electronically (not just on paper), provided stringent security requirements are met. An electronic will would need to use a reliable, tamper-evident system that verifies the testator’s identity and intent, and clearly distinguishes the final version of the document. These safeguards are meant to maintain the integrity of the Will and prevent fraud even without a traditional pen-and-paper signing.
- Remote witnessing as a permanent option: Update the witnessing requirement to permit the presence of witnesses to be satisfied via live video link on a permanent basis. In other words, the Commission recommends that the law explicitly allow remote witnessing going forward, given adequate protections. This acknowledges that modern audio-visual technology can fulfill the same function as physical presence in many cases. If enacted, this would reinstate the option to have Wills witnessed remotely (as was temporarily done during COVID), but under a permanent legal framework.
- Dispensing power for courts: Perhaps most relevant to the topic of contesting a will for formal defects, the Law Commission proposes giving the court a discretionary power to dispense with the strict formality requirements in exceptional cases. This would mean that if a Will did not meet all the technical execution rules, a court could nonetheless declare it valid if there is clear evidence that the document reflects the deceased’s settled testamentary intentions. Such a “dispensing power” (similar to laws in some other countries) would prevent wills from failing on a pure technicality – for example, if a witness signed a day later due to an oversight – so long as the court is satisfied no fraud or doubt about the testator’s wishes is involved. This recommendation aims to balance the need for formal safeguards with a measure of flexibility to uphold genuine intentions.
These proposed reforms signal a more flexible future for will-making. They recognise that the way we live and communicate has changed since 1837, and the law should catch up to better serve citizens. If Parliament adopts these recommendations and enacts a new Wills Act, we could see electronic signatures, remote attestations, and even the salvaging of informally-made wills become part of standard practice. However, until such reforms are passed into law, the traditional rules remain in force.
Note that sometimes mistakes as to execution can be rectified – for example, in Marley v Rawlings and another [2012] EWCA Civ 61, a case involving a husband and wife that signed each other’s mirror Will, the Supreme Court ultimately held that the issue could be rectified under section 20(1)(a) of the Administration of Justice Act 1982, because in effect it was a clerical error.
Contrast this with Barrett v Bem and others [2012] EWCA Civ 52 in which the Court found that the Will, which had been signed for the testator by their sister, was invalid due to insufficient evidence that the sister was signing the at the testator’s direction. Where a Will is signed at the testator’s direction, some sort of positive communication (verbal or non-verbal) by the testator is needed and there was no evidence of this.
The two cases are a good comparison to show the difference between a clerical mistake (which was the fault of the solicitor who handed each of the parties the wrong Wills) and a Will that has not been executed in accordance with legislative requirements.
Jennifer Wiss-Carline is a practising Solicitor regulated by the SRA and a Chartered Legal Executive (FCILEx), bringing over two decades of experience to her practice. Specialising primarily in Private Client law, Jennifer expertly handles matters including Wills, Inheritance Tax and Estate planning, Lasting Powers of Attorney for individuals and businesses, Deputyship Orders and more.
