Definition
Lack of due execution is a legal ground for challenging a will's validity when the strict signing and witnessing requirements of the Wills Act 1837 were not properly followed.
Unlike challenges based on mental capacity or undue influence, lack of due execution focuses purely on whether the mechanical formalities of signing and witnessing were correctly observed—potentially rendering the will invalid regardless of the testator's intentions.
What Does Lack of Due Execution Mean?
Section 9 of the Wills Act 1837 (as amended in 1982) requires the testator to sign in the presence of two witnesses who are present simultaneously, with each witness then signing in the testator's presence. These formalities prevent fraud and ensure authenticity. "Lack of due execution" means failure to comply with these requirements.
Common failures include having only one witness, witnesses signing separately, or witnesses not being physically present. Emma writes her will in April 2024 leaving her £380,000 estate to her three children and asks her neighbor David to witness it. This suffers from lack of due execution because Section 9 requires two witnesses present simultaneously. If challenged, the court would likely declare it invalid, and Emma's estate would pass under intestacy rules. DIY wills are particularly vulnerable, as are wills made during COVID-19 when temporary remote witnessing created confusion (that provision ended 31 January 2024).
Distinguish this from the beneficiary-witness issue. If a beneficiary acts as one of two witnesses, the will is properly executed, but Section 15 voids that beneficiary's gift. This is not lack of due execution—the will remains valid.
When a will contains an attestation clause (confirming formalities were followed), courts apply a strong "presumption of due execution." To challenge it, someone must provide "the strongest evidence" (Wright v Rogers, 1869). In Channon v Perkins (2006), witnesses' vague memory was insufficient. However, in Burgess v Penny (2019), clear evidence a witness didn't see the testator sign successfully rebutted it. If declared invalid, an earlier valid will applies, or intestacy rules govern.
Common Questions
"What happens if my will wasn't witnessed properly?" It may be declared invalid due to lack of due execution. This means the will fails Section 9 requirements, such as having two witnesses present simultaneously. If invalid, an earlier valid will applies, or intestacy rules determine distribution if no earlier will exists.
"Can a will be challenged for lack of due execution?" Yes, but you must provide "the strongest evidence" (Wright v Rogers, 1869) that formalities weren't followed. If the will has an attestation clause stating proper execution, there's a strong presumption of validity that's difficult to overcome without compelling evidence.
"What are the most common execution errors that invalidate DIY wills?" The most common errors are: only one witness present (not two), beneficiaries witnessing (which voids their gift), witnesses not present simultaneously, and witnesses signing in different locations. These mistakes are particularly common with DIY wills and wills made during COVID-19.
Common Misconceptions
Myth: If both witnesses signed my will, it's definitely valid—lack of due execution only happens when there are no witnesses.
Reality: Even with two witness signatures, a will can suffer from lack of due execution. The witnesses must have been present simultaneously when you signed, and they must have signed in your presence. If they signed separately or in different locations, this is lack of due execution.
Myth: Lack of due execution is easy to prove because you just show the witnesses weren't present.
Reality: It's very difficult to prove when a will has an attestation clause. Courts apply a strong "presumption of due execution" requiring "the strongest evidence" to overturn. Witnesses not remembering isn't enough—you need clear evidence they didn't see the testator sign.
Related Terms
- Wills Act 1837: The legislation that sets out the strict execution requirements which, if not followed, result in lack of due execution.
- Will Validity: Lack of due execution is one of several grounds that can make a will invalid under UK law.
- Witness Requirements: The specific rules about who can witness a will and how witnessing must be conducted to avoid lack of due execution.
- Attestation Clause: A statement on the will confirming proper execution occurred, creating a strong presumption against lack of due execution claims.
- Will Challenge: Lack of due execution is one of the most common grounds for challenging a will's validity in probate proceedings.
Related Articles
- How to Sign a Will in the UK (The Correct Way)
- What Makes a Will Invalid in the UK?
- How to Contest a Will in the UK: Practical steps for challenging a will for lack of due execution, including evidence requirements.
- Grounds for Contesting a Will: Compare lack of due execution to other grounds like capacity and influence.
- The Inheritance Act 1975 Explained: Understand the distinction between validity challenges and provision challenges.
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Legal Disclaimer:
This article provides general information only and does not constitute legal or financial advice. WUHLD is not a law firm and does not provide legal advice. Laws and guidance change and their application depends on your circumstances. For advice about your situation, consult a qualified solicitor or regulated professional. Unless stated otherwise, information relates to England and Wales.