Witnessing a Will – avoiding the pitfalls

17th March, 2022 by Jennifer Laskey

The law governing how Wills are validly made is little changed since 1837. Section.9 of the Wills Act 1837 deals with the formalities for making a Will and provides that no will shall be valid unless:

it is in writing, and signed by the testator, or by some other person in his presence and by his direction; and
it appears that the testator intended by his signature to give effect to the Will; and
the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
each witness either attests and signs the Will, or acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness), but no form of attestation is necessary.

In recognition of the need for social distancing and the difficulties in physically witnessing a Will following the onset of the Covid-19 pandemic, a change was effected for Wills made on or after 31 January 2020 and on or before 31 January 2022 such that “presence” includes presence by means of video conference or other visual transmission. That change has since been extended to 31 January 2024.

Witnessing a Will

There are strict requirements for a Will to be validly witnessed – fall foul of these and the Will itself, or a bequest in it, may well be found to be invalid. It is important to remember that witnesses to a Will must sign or acknowledge their signature in the presence of the testator but do not have to do so in the presence of the other witness. Witnesses do not need to have any specific knowledge of what the document is. They do not have to know that the document they are signing is a Will.

A beneficiary witness – a person involved in witnessing the Will but also named as a beneficiary in the Will – can be a witness but they would not be wise to act as such. Although the Will would still be valid, any gift to the person witnessing the Will would be void. This rule also applies to any person who at the time the Will is executed is a spouse or civil partner of a beneficiary acting as a witness. Interestingly this rule does not currently apply to cohabitees although the Law Commission are reviewing whether this should be changed.
A person that might inherit on intestacy all or part of the estate can be a witness (subject to the further points below) but it is not advisable – if the validity of the Will is challenged at a later date, they would have a conflict because they stand to gain from the failure of the Will.
A blind person cannot be a witness
A person who is not mentally competent to give evidence can be a witness, but because of the difficulty of obtaining reliable evidence they should be avoided.
A child can be a witness, but again should be avoided unless they are of sufficient age to be able to give credible evidence of the Will signing and witnessing

Courts will always start from a presumption of due execution – expecting that the requirements of Section 9 Wills Act 1837 are met unless presented with strong and persuasive evidence to the contrary.

Nevertheless, the importance of correctly signing a Will and ensuring it is witnessed properly cannot be under-estimated. Errors cannot usually be corrected after death and the good intentions of a testator may be thwarted by a mistake made in the witnessing or execution of a document they otherwise intended to provide certainty.

If you are concerned that a Will may not have been witnessed properly you should speak to our expert team of contested wills and probate lawyers as soon as possible so that we can advise on the practical steps that you might be able to take. For further information click here.

The information on this site about legal matters is provided as a general guide only. Although we try to ensure that all of the information on this site is accurate and up to date, this cannot be guaranteed. The information on this site should not be relied upon or construed as constituting legal advice and Howes Percival LLP disclaims liability in relation to its use. You should seek appropriate legal advice before taking or refraining from taking any action.

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