Witnessing a Will – Simplifying the process?

 

Considerations when witnessing a Will: To be valid a Will must comply with all of the requirements of section 9 of the Wills Act 1837. One such requirement is that a Will must be signed by the testator (person making the Will) in the presence of two or more witnesses who are present at the same time.

What is a witness?

A witness is a person who signs the Will to verify the signature of the testator. The witnesses sign to confirm that they have observed the testator while he signed his Will (although the witnesses need not know that the document is a Will or its contents). Both witnesses must be present at the same time, and must not leave before the testator has completed his signature.

If the testator has signed the Will but not in the simultaneous presence of both witnesses then he must acknowledge his signature by words or by conduct in the presence of both witnesses. At the time of the acknowledgement the witnesses must see or have the opportunity to see the testator’s signature. The signature cannot be concealed or obscured in any way or the acknowledgement will not be valid.

A witness may be called upon at a later date to provide a sworn statement (affidavit) to provide evidence of the circumstances of the signing of the Will if there are any problems with the signatures on the Will, doubts as to the mental capacity of the testator at the time the Will was executed, or any claims that the testator was subjected to undue influence.

Who can be a witness?

Anyone can be a witness unless they are blind, as a blind person is unable to witness a “visible act” such as the signing of a Will.

A witness must be physically present and they must also be mentally present. A person who is physically present at the time the testator signs the Will but who is asleep, unconscious, under the influence of drink or drugs, or otherwise lacking in mental capacity is not a good attesting witness as they are not aware of the circumstances surrounding the signing of the Will and will therefore be incapable of providing a statement as to the valid execution of the Will if called upon.

There is no minimum age requirement to be a witness, but the witness must be aware and competent enough to give evidence so it is advisable to choose witnesses who are over 18. It is also sensible to choose witnesses who are younger than the testator and likely to survive them as they may be required to give evidence after the testator’s death.

A person who is a beneficiary or the spouse of a beneficiary under the Will should not be a witness as under section 15 of the Wills Act 1837 gifts to attesting witnesses are void. For practical reasons witnesses should be independent persons who are not mentioned in the Will.

 

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