Witnessing a Will

6th November 2020Manisha Chauhan10
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To be valid a Will must comply with all of the requirements set out below which is found in section 9 of the Wills Act 1837.

No will is valid unless:-

  1. It is in writing and signed by the testator, or by some other person in his presence and by his direction.
  2. It appears that the testator intended by his signature to give effect to the will.
  3. The signature is made or acknowledged by the testator in the presence of two or more witnesses present at the time.
  4. 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 shall be necessary.

Let us take a look at each point in more detail below.

The will must be in writing and signed by the testator

The will must be in writing whether this is handwritten or typed. There is no requirement for the will to be written on paper. As long as this can be produced to the Probate Registry this will meet the requirements.  In the case of Hodson v Barnes (1926) 43 TLR 71 a will written on an empty ostrich egg shell was once held to be perfectly valid although we are not in any way suggesting that this is the way forward.

The will must be signed by the testator using their normal signature. However, what constitutes a signature has been interpreted fairly liberally by the Courts and the following has been accepted in the past – a mark of any shape, a rubber stamp, inked thumb print.

Where the testator is unable to sign the will, a simple mark is sufficient to validate the Will as long as it is intended to be their signature and that mark is meant to execute the will. There may be other circumstances where the testator is blind, illiterate or paralysed which will affect their ability to sign the Will. In this case, the will can be signed on the testator’s behalf and a special attestation clause must be used.

The intention of the testator

The signing of the will by the testator is evidence of his intention.

Witnesses

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 do not need to know that the document is a Will or its contents or sign in the presence of one another).

Both witnesses must be present at the same time and must not leave before the testator has completed his signature.

Where 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. From a practical perspective, 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.

Lastly, another practical tip is to avoid using a witness from another country since it could be difficult to locate them and communicate with them due to time difference which could subsequently delay the administration of the estate.

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, and any gifts in the will made to them will fail.

Example

Danielle (testator) leaves Amy her friend, a gift of money in her will for the sum of £4,000. Amy was asked to be a witness to Danielle’s will. Danielle passes away soon after. As Amy is a beneficiary in the will her gift, in this case, will be forfeited and she will not be entitled to it.

It is important during attestation meetings to ascertain who the witnesses are and their relationship to the testator and beneficiaries to prevent the above from occurring.

For practical reasons witnesses should be independent persons who are not mentioned in the Will. Family members witnessing the will could cause problems and therefore a potential delay in the administration of the estate. Potential witnesses could be friends, neighbours or even work colleagues.

 

**Whilst we are aware there have been changes to the requirement of witnesses being present due to the introduction of video witnessing, the advice is still for witnesses to be physically present where possible and video witnessing should only be used as a last resort**

Manisha Chauhan

Manisha joined the Technical Advice Team in July 2019 having previously worked as an Employment Solicitor in Warwickshire before relocating to Lincolnshire. Manisha provides advice on technical queries daily and works alongside Siobhan Smith also providing ongoing support on Sure Will Writer.

10 comments

  • Robert Shaw

    7th November 2020 at 1:51 pm

    Can an executor witness a will if they are not a beneficiary ?

    Reply

    • Manisha Chauhan

      9th November 2020 at 10:45 am

      Hi Robert, an executor can witness a Will as long as they are not a beneficiary.

      Reply

  • Mark

    20th November 2021 at 8:57 am

    Hi Manisha
    I understand the Wills Act 1837 has been amended especially s9 which now reads

    Signing and attestation of wills

    [F2(1)]No will shall be valid unless—
    (a)it is in writing, and signed by the testator, or by some other person in his presence and by his direction; and
    (b)it appears that the testator intended by his signature to give effect to the will; and
    (c)the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
    (d)each witness either—
    (i)attests and signs the will; or
    (ii)acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness),but no form of attestation shall be necessary.

    I draw your attention to (d)ii but no form of attestation shall be necessary.

    Also s14 reads

    14 Will not to be void on account of incompetency of attesting witness.
    If any person who shall attest the execution of a will shall at the time of the execution thereof or at any time afterwards be incompetent to be admitted a witness to prove the execution thereof, such will shall not on that account be invalid.

    Also s17

    17 Executor shall be admitted a witness.
    No person shall, on account of his being an executor of a will, be incompetent to be admitted a witness to prove the execution of such will, or a witness to prove the validity or invalidity thereof.

    I have researching this area of law for the past 6 months and I am really surprised many law firms who publish the requirements of a will have made no reference to the above sections within the Act, I would there appreciate your input in these regards.

    Reply

    • Siobhan Rattigan-Smith

      22nd November 2021 at 6:48 pm

      Hi Mark,
      You are correct that s9 of the Wills Act 1837 does state that no form of attestation shall be necessary. However, attestation clauses are still routinely included in wills as it expediates the process of proving the will post death as without one the probate registrar is under a duty to make enquiries into the execution of the will. I point you to section 12(1) of the Non-Contentious Probate Rules 1987, which states “…where a will contains no attestation clause or the attestation clause is insufficient, or where it appears to the registrar that there is doubt about the due execution of the will, he shall before admitting it to proof require an affidavit as to due execution from one or more of the attesting witnesses or, if no attesting witness is conveniently available, from any other person who was present when the will was executed; and if the registrar, after considering the evidence, is satisfied that the will was not duly executed, he shall refuse probate and mark the will accordingly.”

      Sections 14 refer to the incompetency of the witness to provide evidence, not their incompetency to act as a witness to the will. An example of this would be where a minor acts as a witness. Mostly though it protects a will from being rendered invalid if a person who was a competent witness is unable to provide evidence of the due execution after the testator’s death.

      Section 17 allows an executor to act as a witness, and to provide evidence as to the wills due execution. An executor should only be used as a witness if they themselves are not benefitting from the will though as they would lose their benefit under the will if so.

      Reply

  • Mark

    20th November 2021 at 9:10 am

    Hi Manisha

    If I can raise another point. I noticed on a number of websites make reference to a person physical condition such as the deceased
    was :-
    a) Blind
    b) Arthritis on hands and arm
    c) Paralyzed
    d) Temporary form illness

    Surely of the will is being contested on the above grounds the defendant would have grounds under the Disability Discrimination Act. ?

    Reply

    • Siobhan Rattigan-Smith

      22nd November 2021 at 6:54 pm

      Hi Mark,

      The will wouldn’t be contested on the grounds that the testator was blind or physically frail due to some condition. Extra steps would just need to be taken to make sure the will had been executed correctly and that the testator had sufficient knowledge and approval of the contents of the will. If anything these extra steps are there to protect a disabled testator by making sure that a process has been followed to ensure they were aware of the contents of their will when signing it. For example the process for a blind testator would be to read the will over to them before they signed it.

      If another person has signed the will on the testator’s behalf because they were unable to sign themselves then the probate registrar making extra enquiries into why that was done is a protective measure for the testator. All of this is easily avoided by simply including the correct attestation clause in the will though to make the special circumstances clear so there is no need for further enquiry.

      Reply

  • David de Roeck

    5th April 2022 at 2:05 pm

    Can the solicitor who has written the will be a witness ?

    Reply

    • Siobhan Rattigan-Smith

      6th April 2022 at 8:50 am

      Hi David, it is fine for the professional who has written the will to act as a witness.

      Reply

  • Hannah Clark

    1st October 2022 at 1:01 am

    Can the grandson of a beneficiary be a witness?

    Reply

    • Siobhan Rattigan-Smith

      3rd October 2022 at 11:50 am

      Hi Hannah, as long as said grandson also isn’t a beneficiary under the will it would be fine for them to witness.

      Reply

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