Wills For Testators Who Are Blind / Partially Sighted

When creating a Will, it must be prepared in the prescribed format and executed by the testator i.e. the person making the Will, whilst demonstrating the required testamentary capacity and intention to make the Will.

There is an assumption that, provided the testator had capacity and the Will has been duly executed, the testator also knew and approved the contents of the Will.

What are the additional steps required?

In circumstances where a testator may be either blind, partially sighted or illiterate, there are additional steps to take to ensure that the testator complies with the requirements for a Will to be validly executed.

Initially, extra care should be taken when taking instructions and discussing the draft Will. For example, with an illiterate testator good practice is to ask the testator to paraphrase the Will in their own words to demonstrate their knowledge and approval. Alternatively, it may be beneficial to arrange an interpreter to assist with the Will instructions and reviewing of the Will should English not be the first language spoken. Additionally, with a partially sighted testator, the formatting, font and font size of the Will can be amended to help suit the specific needs of such a testator.

Thereafter, once the Will has been prepared and approved in readiness for signing, it will be necessary to read the Will to the testator at the time of signing. The testator must appear to understand the Will, approve the contents of the same once it has been read, and intend for the document to be their valid Will. It should be read to the testator slowly and clearly. Again, it is useful to ask them to paraphrase back their understanding again.

Varying the attestation clause

As a matter of good practice, to confirm that the above has been carried out, the attestation clause (i.e. the execution clause which recites applicable execution formalities for the Will to take effect) will need to be varied from the usual attestation clause used in Wills. The attestation clause must reflect the exact circumstances of the Will signing to avoid the validity being questioned.

In addition, affidavit evidence can also be obtained from the witnesses to the Will, to store with the same, to demonstrate that the testator understood the Will and to confirm the facts surrounding the Will signing. This is because, owing to the circumstances, the Probate Registry may have doubts as to whether the assumption of knowledge and approval applies. The affidavit of due execution can then be stored with the original Will in readiness for submission to the Probate Registry when the testator has passed away and probate is being applied for. It is important to note that the affidavit is an additional document to the Will and care should be taken when drafting the same.

Anticipating issues with signing a Will

Further, the sight or literacy of the testator may also affect their ability to sign the Will. In such circumstances, the testator can either mark the Will as their signature, or direct that the Will be signed by another person on their behalf. In both options, the attestation clause will need to be amended to reflect the exact circumstances. Should the testator elect for another person to sign on their behalf, it is recommended that such a person be an independent person i.e. not related to the testator. Again, it would also be recommended that an affidavit be obtained, as evidence that the proper processes were followed at the time the Will was executed.

Frequently Asked Questions

Can a blind or partially sighted person make a valid Will?

Yes. A blind or partially sighted person can make a valid Will, provided they have mental capacity and the Will is properly executed. Additional steps such as reading the Will aloud and adapting the attestation clause are taken to confirm that the testator understands and approves its contents.

How do you ensure that an illiterate testator understands the Will?

The Will should be read aloud, and the testator may be asked to paraphrase the provisions in their own words. An interpreter can be used if English is not their first language.

Does the Will need a special attestation clause?

Yes. When a testator is blind, partially sighted, or illiterate, the attestation clause must record precisely how the Will was read, explained, and executed to avoid challenges to its validity.

What if the testator cannot physically sign the Will?

If the testator cannot sign, they may make a mark instead or direct an independent person to sign on their behalf. The attestation clause must be amended to reflect the method used, and it’s advisable to obtain an affidavit confirming the circumstances.

Can someone related to the testator sign on their behalf?

Legally, they can, but it is best practice to use an independent, unrelated person to avoid conflicts of interest or later challenges.

Examples

Example A

Blind testator – Will read aloud and attestation clause varied

Mr Ahmed is completely blind but has full mental capacity. His solicitor reads the entire Will aloud to him during the signing appointment, pausing after each clause to ensure he understands. Mr Ahmed paraphrases the key provisions back to the solicitor. He signs using his usual signature and two witnesses sign in his presence. The attestation clause is adapted to confirm that the Will was read aloud, understood, and approved. A contemporaneous witness affidavit is prepared in case the Probate Registry later questions knowledge and approval.

Example B

Illiterate testator – paraphrasing to confirm understanding

Mr Grant cannot read or write but speaks fluent English. When reviewing the draft Will, the solicitor reads each clause to him and asks him to explain in his own words what each clause means. This demonstrates clear knowledge and approval. At signing, Mr Grant makes a distinct “X” mark as his signature, witnessed by two independent witnesses. The attestation clause states that the Will was read to him and signed by mark. An affidavit of due execution is prepared for future probate.