What are the rules on witnessing a will?
Can anyone witness a will? In short, the answer is no, and here is why.
One of the formalities for a will to be valid is that it has been properly witnessed in accordance with section 9 of the Wills Act 1837. A witness plays a very significant role in the creation of the will as they are confirming that the will writer (also known as the testator) duly signed the will, by acknowledging their signature. Whilst there are no formal requirements dictating who can and cannot witness a will (although case law has excluded a blind person from being able to act as a witness), it is important to consider the potential effects of particular categories of persons witnessing a Will.
Practicalities of witnessing a will
Firstly, it is a requirement by law that the testator’s signature must be witnessed by at least two witnesses. Whilst more than two witnesses are allowed, in practice, it only ever tends to be two. Both witnesses must be present at the same time as the testator signing or acknowledging his signature. This involves the testator acknowledging that the signature on the will is theirs in the presence of both witnesses at the same time regardless of whether or not the witnesses were present during the physical signing of the will. Each witness must attest and sign the will or acknowledge their signature in the presence of the testator, however each witness need not be present whilst the other witness is signing (or acknowledging).
Identity of witnesses
Turning to the individual witnesses themselves, the Wills Act 1837 does not contain any requirements concerning a witness’s capacity however it is generally accepted that a witness must be able to appreciate the significance of being such and so this would rule out minors and people who lack mental capacity.
A person related to the testator is able to act as a witness to a will, however, any gift in the will to the witness or to the witness’ spouse or civil partner would be invalidated, whilst the rest of the will would remain valid. It is for this reason that it is generally advised that beneficiaries and their spouses or civil partners, should not be witnesses.
Case law has confirmed that gifts to beneficiaries remain valid in situations where the witness subsequently marries or forms a civil partnership with a beneficiary or vice versa. There are a number of other situations where a witness does not forfeit their ability to benefit under a will:-
- If the witness becomes a beneficiary after the date of the original will i.e under a codicil. Similarly, witnessing a codicil does not mean that a witness forfeits their benefit under the original will.
- Where the witness is a professional trustee or executor who benefits from a charging clause under the Will.
- A privileged Will made by a Soldier or Mariner in active service is excepted from the usual rules under s.9 Wills Act 1837 and so a witness can also be a beneficiary under this type of Will.
Whilst the Wills Act 1837 strictly will allow anyone to witness the will, it is evident that in practical terms, this cannot be the case and it is important to have regard to the effects outlined above before choosing your witnesses.
Grounds for contesting the validity of a will
The validity of a Will can be contested on one or more of the following grounds:
- Lack of testamentary capacity
- Undue influence
- Lack of knowledge and approval
A testator must have the requisite mental capacity at the time of executing his will and whilst also giving instructions for the drafting of his will. The well known case of Banks v Goodfellow established the following test of testamentary capacity; the testator must understand that he is making a will which will deal with how he wishes for his estate to be distributed upon his death, he must know the extent and nature of his property, he must be able to understand the nature of potential claims which could be brought against his estate for excluding certain beneficiaries from the Will, and finally the testator must not be suffering from any disorder of the mind which is poisoning his affections or has the ability to prevent the exercise of his natural faculties.
There is no uniform level of capacity applicable to all individuals and capacity is tested on a subjective basis, taking account of the individual themselves and also the complexity of the will and their circumstances. A diagnosis of dementia, for example, does not necessarily mean that that person does not have capacity to make a will and where a solicitor is preparing the will, the onus is on them to satisfy themselves that the testator has the requisite capacity. The introduction of the Mental Capacity Act 2005 reinforces the principles set out in case law. In more complex situations it is not unusual for a solicitor to seek a medical report on the testator’s mental capacity and this is in fact considered the ‘golden rule’ where there is any doubt regarding capacity. Of course, in some cases (such as a deathbed will), it may not be practical to obtain a medical report on capacity due to the urgent nature of the situation. Case law confirms that it would not be inappropriate for the solicitor to conduct their own test of capacity in these circumstances
A will is invalid if its creation has resulted from force, fear and/or undue influence and so an individual may be able to contest the validity of a will if these suspicions arise. Case law defines undue influence as pressure placed on the individual so as to overpower the volition of that individual, but not their judgement. The will must be the offspring of the testator’s volition and not the record of someone else’s. In determining “pressure” exerted, this is assessed in relation to the testator’s physical and mental strength to determine how susceptible they are to succumb to pressure. It must be noted that pressure must be distinguished from mere persuasion, appeals for affection or pity, which are in fact perfectly legitimate.
Where it is believed that undue influence has procured the execution of a will, the onus is on the person who asserts it to prove that there has been undue influence. There must be positive proof of coercion overpowering the volition of the testator.
Knowledge and approval
An individual who wishes to create a will must know of and approve the contents of their will in order for it to be valid. There is a rebuttable presumption in law that the valid execution of the will, where there are no suspicious circumstances, is sufficient evidence of knowledge and approval. Where a will is drafted by a solicitor and simply read out verbatim to the testator who then signs it, in some circumstances, this may not constitute knowledge and approval as some clients may find the customary language of wills too complex to fully understand and appreciate its effect. It is important that the testator understands their own wishes and the effects thereof so that the will duly represents their own intentions. This requirement applies to the entire will document and so if the testator does not understand part of the will, then the validity of said part may be contested.
The three grounds outlined above can be used as alone or in conjunction with another; with testamentary capacity often being a relevant factor in the other grounds.
Do you have a question about witnessing a will?
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The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law and should not be treated as such.
Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission.
Before acting on any of the information contained herein, expert legal advice should be sought.