10 February 2020 / By Joseph Layne
Knowledge…Shared…Multiplies
Richard Drayton recently sought my view on a situation he faced. His grandfather died several years ago. He made a will. The will was made 10 years before he died. However, about three years before he died Richard’s grandfather did another document in which he varied some of the provisions in his will. He also made gifts of other property he had acquired. Specifically, in the new document Richard grandfather left 10 acres of land for Richard’s mother.
Richard said that he had contacted a lawyer and the lawyer told him that his mother was not entitled to the land because the document was not properly executed.
After asking Richard what I considered to be pertinent questions, I had to tell Richard that I agreed with the lawyer.
There was no doubt that the document was written and signed by Richard’s grandfather. However, one of the critical requirements of the Wills Act was not complied with. Such non-compliance rendered the document ineffective as a will.
The will must be signed and witnessed
For a will to be valid, it is absolutely necessary but not sufficient that it be signed. It must not only be signed but the signing of the will must be witnessed by at least two persons. Moreover, both witnesses must be present at the same time i.e. when the will is being signed. They must sign the will as proof that they witnessed its signing. And they must do so in the presence of the person making the will who is referred to as the testator.
Hence for Mr. Drayton’s document to have been valid as a will he was required to sign it in front of two witnesses present at the same time. There was no evidence on the document that that was done and hence it was not a valid will.
Acknowledging signature
Besides signing the document in front of the two witnesses, it would have been sufficient if Mr. Drayton had acknowledged his signature in front of two witnesses. Thus at any time before he died, and while he was still of sound mind, Mr. Drayton could have done certain things to validate his document as a will. It would have been sufficient for Mr. Drayton to get two witnesses and show them the document and acknowledge before them that this was a will and have them sign as witnesses to the fact that in the presence of both of them, he acknowledged his signature on the document.
A will could be signed by someone else
Indeed, it may be surprising but a document could be valid as a will even if it is not signed by the testator. It could be signed by someone else. But it would have to be signed by that other person on the instruction of the testator and in his presence; and of course this must be done in the presence of two witnesses.
There are therefore three situations in which your will can be witnessed. Firstly, you can sign it in the presence of the two witnesses. Both witnesses must be present when you sign the will.
Secondly, you may have signed your will at home or in your office when you were by yourself. To have it witnessed, you would then go before your two witnesses, show them the will with your signature on it, and acknowledge your signature.
Thirdly, for whatever reason, you may not be able to personally sign your will. In this case you can authorise someone else to sign it for you. But that other person must sign it in your presence and also in the presence of the two witnesses. Hence when that other person is signing the will three other persons must be present, you and the two witnesses.
Signing by witnesses
Grenadian law requires that both witnesses be present when you sign your will or acknowledge your signature on it or when someone else’s signs your will on your instructions. Grenadian law also requires that each witness must sign in your presence. However, Grenadian law does not require that the witnesses sign the will in the presence of each other. But best practice is that the witnesses sign in your presence and in the presence of each other.
Remember, the law stipulates that at least three persons, you and the two witnesses, must be present when you are signing or acknowledging the signature
on the will. If that does not happen the will is invalid. It is recommended that the same practice be followed when the witnesses are signing the will. They should sign it in the presence of each other and of course in your presence.
-Joseph Ewart Layne
This article is for general information purposes only. Its contents do not constitute legal advice. Before you act on any matter in this article, seek advice from an attorney-at-law.
Joseph Ewart Layne is the Principal of JEL Professional Solutions Inc. He is a graduate of Hugh Wooding Law School; he holds a LLB (Honours) and a LLM (Corporate & Commercial Law) from London University and a LLM (Legislative Drafting) from UWI, St. Augustine. He also holds a BSc. (First Class Honours) in Applied Accounting from Oxford Brookes University and is an ACCA Affiliate.
Contact
JEL PROFESSIONAL SOLUTIONS INC.
Richmond Hill St. George’s
P.O. Box 3889, Burns Point, St. George’s
E-mail: support@jelgrenada.com | josephlayne@jelgrenada.com
Web: jelgrenada.com
Phone: 1 (473) 440-7585 (w) | 1 (473) 458-5576(c)