In an interesting ruling earlier this month, the High Court ruled that a man's Will, written on the back of 2 food boxes, was legally valid. This ruling has sparked widespread interest in the formalities surrounding the creation of a Will, especially in cases where unconventional methods are used. The case, which focused on the will of a man who died in 2021, provides an important reminder of the stringent legal requirements set out in Section 9 of the Wills Act 1837, which governs the creation of valid Wills in England and Wales.

The Case

The case in question concerned the Will of an individual named Malcolm Chenery. Before his death, Chenery wrote his wishes for the distribution of his estate on the backs of two food boxes—one that had contained Young’s frozen fish and another Mr Kipling’s mince pies. These documents were found shortly after his death, and his family sought to have them recognised as his valid Will.

The High Court, after considering the circumstances and reviewing the contents of the ‘Will’, decided that Chenery’s Will was valid, despite its unconventional medium. The court based its decision on the substance of the Will, rather than its format, emphasising that the Will accurately reflected Chenery’s intentions. Also of importance was the fact that the documents were both written in the same pen and handwriting and had overlapping subject matter.

However, we would ring a note of caution for anyone tempted to think that this case provides cart blanche to write your Will on whatever medium appeals at the time.

Section 9 of the Wills Act 1837: The Legal Requirements for a Valid Will

While the ruling in the Chenery case may seem unusual, it is crucial to understand the legal framework under which such cases are evaluated. Section 9 of the Wills Act 1837 outlines the specific requirements for a Will to be legally valid in England and Wales. The Act establishes a strict set of formalities to ensure that a deceased person’s intentions are clearly documented and free from undue influence or error. These requirements include:

1. The Will Must Be in Writing

Section 9 specifies that a Will must be made in writing, which can be either handwritten or typed. It is important to note that the requirement is for the document to be in writing, but it does not stipulate that it must be on any particular type of paper or medium. Therefore, while the idea of a Will being written on food packaging is unconventional, it does not automatically invalidate the Will if the writing is legible and sufficiently clear to convey the testator's intentions (and indeed, if the remaining requirements of section 9 are equally met).

2. The Will Must Be Signed by the Testator

For a Will to be valid, it must be signed by the person making it, also known as the testator. Where a testator is illiterate or immobile, it can also be signed by another person at the testator’s direction. In the Chenery case, there was evidence to suggest that Chenery had signed both of the food packaging items in question, which satisfied this requirement. The testator’s signature is an important safeguard, ensuring that the Will reflects their intentions (in legal speak that they knew and approved its contents).

3. The Testator must intend for their signature to give effect to the Will

This may sound obvious, and in many cases the fact that a Will is signed is proof enough that the testator meant for it to be a valid Will. Nevertheless, the intention to create a Will is crucial.

4. The Signature Must Be Witnessed by Two Witnesses

Another critical requirement under Section 9 is that the testator’s signature must be witnessed by two independent individuals who are present at the same time. This is typically where Wills written in unusual circumstances fail (see below). These witnesses must also sign the Will in the presence of the testator. In the case of the food box will, the question arose as to whether Chenery’s Will was properly witnessed. Chenery had managed to obtain 2 witnesses to his Will, a remarkable act of compliance for a man who thought nothing of scribbling his last Will & Testament on food packaging! However, those witnesses had only signed the second ‘page’ and this may potentially have caused an issue. In this case, the fact that there was overlapping subject matter and the pages were written with the same pen and signed by the testator was sufficient to convince the judge that they formed a continuous document that only needed witnessing once.  

For Will practitioners, this case has echoes of one we are all taught regarding a testator who wrote his Will on an egg. In that case (Hodson v Barnes [1926]) the Court held that the medium of the Will was perfectly acceptable. The Will itself though was found invalid for lack of witnesses. For anyone wondering how on earth you could cram your wishes onto an eggshell (both in general and without breaking it!) I should probably add the medium was an ostrich egg.

5. The Will Must Be Made Voluntarily and Without Coercion:

The formalities laid out in Section 9 of the Wills Act are designed to ensure that a testator has made their Will freely and voluntarily, without any undue influence or coercion from others. In the Chenery case, the court was satisfied that Chenery’s actions in writing the Will on food packaging were a true reflection of his wishes, and there was no evidence to suggest that he was pressured into making the Will in this way. The Court were particularly swayed by the testimony of his family, who were able to confirm that the Will gave effect to his wishes and, in particular, the beneficiary of the Will (Diabetes UK) made a great deal of sense since that condition ran in the family.

Unconventional Wills: A Growing Trend?

While the Chenery case is certainly an outlier, it highlights a growing trend where individuals seek to write Wills in non-traditional formats. In recent years, there have been other instances where individuals have used items such as napkins, scrap paper, and even digital platforms to document their last wishes. These cases raise important questions about how the law interprets "writing" and whether the form of the document is as important as its substance—the testator’s intent.

One of the key takeaways from the Chenery case is that the law is primarily concerned with ensuring that the testator’s wishes are clearly and definitively expressed. As long as the formal requirements—writing, signature, witnessing, and voluntary action—are met, there is room for flexibility in how a Will is presented. However, this does not mean that any document will automatically be accepted as a valid Will. In many cases, especially when the Will is in an unusual format, the court will scrutinise the circumstances to ensure that the Will reflects the genuine wishes of the testator. Even if a Will does prove valid in these circumstances, this will add considerable cost and delay to the administration of an estate.

Why Formality Matters: Avoiding Disputes

The requirements set out in Section 9 of the Wills Act are not arbitrary; they are designed to prevent confusion, fraud, and disputes among family members and beneficiaries after a person’s death. While courts may be more lenient in some cases, the risk of ambiguity and misunderstanding is higher when the will is informal or unconventional. There is also a much higher risk of creating an invalid Will where an unusual medium is used, as the Hodson case demonstrates.

Conclusion

The High Court’s ruling in the Chenery case is a reminder that, while the Wills Act 1837 sets out clear formal requirements for the creation of a valid Will, the law also takes a pragmatic approach to ensure that a testator’s intentions are honoured. The case highlights the importance of understanding the technicalities of Will creation and the potential consequences of informal or unconventional Will formats.

Naturally, we would never advise using a random media to create your Will! Indeed, and whilst we might be biased, we would suggest the safest and most cost-effective method to prepare your Will is thorough a competent professional.

Please do not hesitate to contact the writer by email or on 01494 893 533 if you would like to discuss your own Will.