Custodian · the execution check
The check that happens before anything is posted.
A will that was drafted perfectly can still fail because of how it was signed. This is the list we work through on every single will, before it goes to HM Courts and Tribunals Service.
What the law actually requires.
In England and Wales, section 9 of the Wills Act 1837 sets out four things. The will must be in writing and signed by the testator, or by someone else in their presence and at their direction. The testator must have intended by that signature to give the will effect. The signature must be made or acknowledged in the presence of two or more witnesses, present at the same time. And each of those witnesses must then sign the will in the presence of the testator.
Most execution failures are a small departure from one of those four, made in a kitchen months after the document left your desk. That is what we are looking for.
What the check is, and what it is not.
Our check confirms that the will appears, on its face, to have been signed, dated and witnessed correctly. It is not a legal opinion on the validity of the will, the capacity of the person making it, or whether the will achieves what they intended. Those remain matters for the firm that wrote it.
So the record card we send with the deposit says “Signing and witnessing: checked”, not “passed” or “valid”. We are describing what we looked at, not certifying an outcome.
In particular, the check cannot establish testamentary capacity, the absence of undue influence, or anything that is not visible on the document in front of us. The same paragraph above appears in the partner terms.
The checklist, in order.
- 01Testator's signature present. Signed, in ink, in the place the document intends. We also look for a signature that has been started and abandoned elsewhere on the page.
- 02The date. Present, complete, and consistent everywhere it appears. An undated will is not automatically invalid, but it makes proving which document is the latest very much harder.
- 03Two witnesses, both signed. Two signatures, not one, and not a signature plus a printed name.
- 04Witness names and addresses legible. A witness who cannot be traced later is a problem for the executor, not for you — which is exactly why it should be caught now.
- 05No witness who is a beneficiary, or the spouse or civil partner of one. The will survives, but under section 15 of the Wills Act the gift to that person is void. This is the single most expensive error we find.
- 06The attestation clause. Present and consistent with what the signatures actually show on the page.
- 07Page integrity. Every page present, in order, and none substituted. We check the execution page belongs to the document in front of it.
- 08Alterations. Any amendment on the face of the will initialled and attested, or flagged back to you if it is not.
- 09Names consistent throughout. The testator, executors and beneficiaries named the same way in the body as on the execution page.
- 10Nothing attached that should not be. Staples removed and replaced, paper clips, and anything that suggests a document was once attached and is now missing.
What happens when a check fails.
Nothing is lodged. The will goes back to you — not to your client — with a written note setting out what we found and what would put it right. You decide how to handle the conversation and whether the will needs re-executing.
The fee is held against the resubmission, not refunded. Send the corrected will back and we lodge it under the same case at no further charge. Nothing is deducted for the failed check, and the HMCTS fee has not been spent because nothing was submitted.
This is not an edge case. Catching these is what the product is for, and a will coming back is the service working rather than failing.
We check signing and witnessing. We do not review the drafting, the tax position or whether the will does what your client wanted — that is your work, and Custodian is not a law firm and does not give legal advice.
Questions about execution.
Can a beneficiary witness a will?
They can, and the will stays valid — but under section 15 of the Wills Act 1837 the gift to that witness, or to their spouse or civil partner, is void. In practice this means a beneficiary who witnessed the will inherits nothing under it. It is the error we most want to catch before a will is deposited.
What if the will isn't dated?
It is not automatically invalid, but it creates a real problem: if more than one will surfaces, establishing which came last becomes an evidential exercise. We flag an undated will back to you rather than lodging it.
Do the witnesses need to see each other sign?
Both witnesses must be present at the same time when the testator signs or acknowledges their signature. Each witness then signs in the presence of the testator. Witnesses signing separately, in different rooms or on different days, is a common and serious problem.
What happens if the check fails?
Nothing is lodged and the will comes back to you with a written note of what is wrong. The fee is held against the resubmission rather than refunded — send the corrected will back and we lodge it under the same case at no further charge.
Do you check the drafting as well?
No. We confirm the will appears, on its face, to have been signed, dated and witnessed correctly. That is not a legal opinion on validity, capacity or whether the will does what your client intended — the content of the will stays your professional responsibility. Custodian is not a law firm and does not give legal advice.
Every will, every time.
The check is included in the one-off £79 for that will. So is the HMCTS deposit fee, the pack and the postage.