At McCarthy + Co Solicitors LLP, our wills and probate team are often approached by people concerned about the validity of a will. A question we are sometimes asked is whether an unsigned document found after a person’s death can be treated as a valid will. The answer under Irish law is straightforward: an unsigned will has no legal effect whatsoever.
What the law requires
The formal requirements for a valid will are set out in Section 78 of the Succession Act 1965. To be legally valid, a will must:
- Be in writing (whether handwritten, typed, or printed).
- Be signed at the foot or end by the testator, or by someone else at the testator’s direction and in their presence.
- Be signed or acknowledged by the testator in the presence of two witnesses, both present at the same time.
- Be signed by both witnesses in the testator’s presence.
All four requirements must be met. If any one of them is missing, the will is invalid in its entirety, regardless of how clearly it expresses the deceased’s intentions.
It is also worth noting that electronic signatures offer no solution here. Under Section 10 of the Electronic Commerce Act 2000, wills and other testamentary instruments are expressly excluded from the provisions that give electronic signatures legal effect. A digitally signed will is no more valid than one that has not been signed at all.
No court can override a missing signature
Unlike some other jurisdictions, Irish courts have no power to admit an unsigned will to probate, even where the document clearly reflects what the deceased wanted. There is no discretion to overlook a missing signature, however genuine the testator’s intentions may have been. This often comes as a surprise to families, but it is an established and unambiguous feature of Irish succession law.
What happens to the estate
Where a will is unsigned and therefore invalid, the deceased is treated as having died intestate, meaning without a valid will. The estate is then distributed according to the intestacy rules in the Succession Act 1965, completely regardless of what the unsigned document said. In broad terms:
- If the deceased is survived by a spouse or civil partner but no children, the spouse or civil partner inherits the entire estate.
- If survived by a spouse or civil partner and children, the spouse or civil partner takes two-thirds, and the children share the remaining one-third equally.
- If there is no surviving spouse or civil partner, the estate passes to the children in equal shares.
- If there are no children either, the estate passes to other next-of-kin in the order set out in the Act.
The Citizens Information service provides a helpful overview of these rules for those who wish to understand them in more detail.
Common situations in which this arises
The three scenarios we most commonly encounter are: a draft will prepared by a solicitor that the client never returned to sign; a homemade or DIY will that was filled in but left unsigned; and a will where the testator signed but the two-witness requirement was not properly met. In each case, the legal outcome is the same.
What to do if you find an unsigned will
If you have discovered an unsigned will, we recommend that you take the following steps:
- Do not alter or destroy the document.
- Check whether a valid, properly executed will exists elsewhere, for example with a solicitor who may have drafted it.
- Take legal advice before any steps are taken to administer the estate.
Where all of the people entitled under the intestacy rules are in agreement, it may in some circumstances be possible to redirect the estate by way of a deed of family arrangement. This requires the consent of all parties and has tax implications, so legal advice is essential before proceeding.
Ensure your will is properly executed
The most effective way to avoid this situation in the future is to ensure that your will is correctly executed in the first place. We recommend that you have your will drafted or reviewed by a qualified solicitor, sign it in the presence of your solicitor with two appropriate witnesses present at the same time, and review it after any significant life change such as marriage, the birth of a child, or a major change in your assets.
Speak to our wills and probate team
If you have concerns about an unsigned will, or if you would like to ensure that your own will is properly executed, our wills and probate team at McCarthy + Co Solicitors LLP would be glad to help. To arrange a consultation, please complete our online contact form and a member of our team will be in touch.
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