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  1. Law
July 24, 2014updated 11 Jan 2016 2:56pm

Writing a will? Here are the terrible things which can go wrong

By Spear's

We make impressions all the time – first impressions, bad impressions, false impressions. But it was the impression of a signature on a will which brought a woman to court and almost caused a miscarriage of justice.

In 2011 Gillian Clemo was found guilty of forging her partner Christopher John’s will after his death with a view to depriving his wife of most of his fortune. She had to pay £8,000 in fines and costs.

The conviction was based partly on the fact that there were indentations near the top of Mr John’s will indicating that a forger had been practising his signature. However, earlier this month the Court of Appeal heard that a new copy of the alleged will had been found and analysis suggested that the indentations might actually be from Mr John signing the new will on top of the other copy. The appeal judges therefore found the conviction to be unsafe and overturned it.

Although this case is an extreme example, it demonstrates what can happen if there are marks on a will which are not easily explained as simple wear and tear. Even marks as seemingly innocent as those of a paperclip can cause problems. This is a guide to practical things you need to think about when signing your will.

If the will is ever challenged, it may be possible to build an argument that the marks show that another document was attached to the will, in particular a codicil, which is a document which legally amends a will. Alternatively it may show that the actual pages of the will have been changed.

The most common reason for a paperclip mark will be that the pages of the will were not actually bound together when the person making the will, the testator, signed it. It is therefore important that the pages of all wills are bound prior to execution even just by a staple as this will avoid complications.

If there is more significant damage to the will, such as tears, burns or marks defacing the will, it can be a sign that the testator tried to revoke the will by destruction.

Under these circumstances, relevant evidence may be needed to show that the testator did not damage the will with an intention to revoke it, that the will was not damaged by the testator or that the damage was caused after death. Other common issues which arise include not dating the will, making hand written changes to the will and weak signatures.

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Although a will does not need to be dated to be effective, not dating the will can cause problems if several different wills are found all made by the same testator. If drafted correctly new wills revoke previous wills and therefore it is extremely important to know the date on which each will was signed to help determine which will is still valid.

Handwritten changes made to a will at the time the will is being signed are legally binding if the two witnesses to the will initial the changes. However this is not the case if the changes are made after the will is signed and it is not always clear when the changes were made. If any changes as significant it would be better to prepare a new copy of the will to be signed by the testator to avoid the need for any hand written amendments.

If a testator is elderly, a weak and spidery signature can be taken as a sign that a testator does not have sufficient mental capacity to make a will which would make the will invalid. Again, this issue, and the others mentioned above, can generally be overcome by evidence given by the individuals who witness the signing of the will or the individuals who were involved in the preparation of the will.

However being aware of these potential problems and taking the necessary steps to avoid them is always going to be a better approach than dealing with issues after the fact.

Clare Morison is a senior associate in the private client department at Thomson Snell & Passmore

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