According to s5(2) of the Wills Act (“WA”), every will shall be signed by the testator, or by some other person in his presence and by his direction; such signature shall be made or acknowledged by the testator in the presence of 2 or more witnesses.
Meaning of Signature
So what amounts to a signature? The courts have traditionally given a broad interpretation to the words “signed by the testator” and no particular form of signature is necessary. A mark placed on the will which was in some way intended as the testator’s signature done with an intention to execute the will is sufficient. Lord Campbell in Hindmarsh v Charlton explained what is signature by stating that there must either be a name or some mark which is intended to represent that name. Thus, it would be sufficient to use a stamped name or a seal intended as a signature.
For instance, in Re Finn, the court accepted a smudged thumbprint since the illiterate testator intended for it to be his signature while in Re Savory’s Goods, initials were held to be a signature. In Re Jenkins, the testator signed using a rubber stamp. It was held that the signature is valid because the court held that such a stamp was intended by the testator to be his signature.
It should be noted that the testator must have intended to give effect to his will by his signature. A lack of intention will invalidate a will. As seen in the case of Re White, the court held that it must be emphasized that the question is not what the testator intended but what he intended by his signature at the time he signed the will.
Position of Signature
Knowing what a signature is, some might ask “Is the position of the signature important?”
The answer is yes, the position of the testator’s signature is important. As per s5(2) WA, the testator must sign at the foot or at the end of the will. This section also includes a proviso whereby nothing can be written or added below the testator’s signature. If anything is inserted underneath the signature, it shall not be given effect.
Signature on Behalf of the Testator
So far, we’ve covered signatures made by assumedly able bodied testators. But what if a testator is not healthy enough to sign their will on their own power since they might be too weak to hold a pen? Is someone else allowed to sign on their behalf? As per s5 WA, some other person is allowed to sign the testator’s will on their behalf but it has to be done in the testator’s presence as per their directions. This can be seen In the Goods of James Clark, Deceased where it was held that the signature has to bear the name of the testator and be by his direction.
Signing Attachments
Moving on, in regards to signing an attachment, a question arises as to whether the testator must sign every sheet. In Re Little, the testator’s will consisted of five sheets of paper. He signed the fifth sheet which at the moment of execution, was covering the other sheets. It was held that since the five sheets were pressed together when it was signed, there was sufficient nexus between them to form a single will.
Witnesses
Lastly, s5(2) WA states that a testator has to sign their will or (if their signature was made by another) acknowledge their signature in the presence of two witnesses at the same time and each witness has to be in the presence of the testator. According to Re Colling, the will was not valid as one of the witnesses left the scene before the testator finished signing the will, incomplete witness presence. However, it was provided that if the testator did not sign in front of 2 witnesses but later acknowledged the signature in front of 2 witnesses at the same time, the will is valid.
Conclusion
In short, a signature is a mark placed on the will which was in some way intended as the testator’s signature done with an intention to execute the will. It has to be at the end of the will. Said signature also has to be made in the presence of two witnesses at the same time and each witness has to be in the presence of the testator.
