05.01.2024

How to make sure your Will is valid if you are blind or visually impaired

This week marked an important day in the international calendar for raising awareness and celebrating the importance of accessibility and independence for those who are blind or visually impaired.

World Braille Day seeks to spread awareness about braille and other forms of accessible communication to ensure equality for all in accessing information.

Whilst the legal profession still has a long way to go in terms of documents being more widely available to clients in alternative written forms such as braille, it is worthwhile to reflect on this day of the additional considerations which testators who are blind or visually impaired need to consider when creating their Will.

As legal practitioners know all too well, the formality requirements for a valid Will are outlined in s9 of the Wills Act 1837 as follows:

Be in writing;
Signed by the testator in the presence of two witnesses;
Signature and attestation from both witnesses in the presence of the testator and;
Testator intends the document to be a Will and give effect to its contents.

Where a Will contains an attestation clause, there is a presumption that the Will was executed in accordance with these formalities. However, this presumption does not apply where the testator is blind. Under Rule 13 of the Non-Contentious Probate Rules (SI 1987/2024) in situations where the testator is blind, before their Will can be submitted to Probate, the District Judge or Registrar must satisfy themselves that the testator had the necessary knowledge and approval. Therefore, additional steps need to be taken when the testator has a visual impairment to be confident their Will is valid.

One way this can be achieved is to insert a bespoke attestation clause which acknowledges the testator’s visual impairment and reflects the additional steps taken to ensure they knew and approved of its contents. This clause needs to show that:

The testator, despite their visual impairment, understands the document (e.g., by having the contents read to them);
The testator intends the document to be their Will, and;
The testator signed it themselves with their signature or mark. Alternatively, they authorised someone else to sign it on their behalf.

Whilst there is no legislative requirement for a specific form of attestation clause, failure to include this could cause problems following the testator’s death when their Will is submitted to Probate. Without this, an affidavit must be written and submitted by one of the witnesses or other persons aware of the circumstances surrounding the instruction of the Will who can testify this was properly executed. This would not only cause delays in administering the Estate but could see the testator’s Will declared invalid if a suitable affidavit cannot be provided.

Whilst these mechanisms are in place to protect those with increased vulnerabilities, it’s important that individuals are aware of these differences when executing their Will. This is not only to ensure that testator’s wishes are respected in death but also to alleviate the burden on their loved ones of following through potential legal pitfalls after their passing.