The Importance Of Witnesses To A Will

A will is a very important legal document and must be prepared, executed and witnessed in a certain way to be valid.

The requirement is set out in section 9 of the Wills Act 1837 which states that:

“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.”

Witnessing of a Will

A will has to be witnessed in the presence of two independent witnesses.

They cannot be the spouse/civil partner or a beneficiary of the will (or spouse/civil partner of the beneficiary), but an executor can be a witness. Otherwise, the gift to that beneficiary could be invalidated

Both the witnesses must be present at the same time when the will is executed by the testator.

The witnesses do not need to read or know about the contents of the will itself.

You should try and avoid using the following people as your witnesses:

• Elderly (in case they die and cannot give evidence if the will is challenged)
• Child (in case they do not understand and/or cannot give credible evidence if the will is challenged)
• Blind (as they cannot see/witness the execution)

If a solicitor has drafted the will then you would expect them to be one of the witnesses. If there are concerns about the testator’s capacity, the ‘Golden Rule’ suggests that a medical practitioner should witness the will (as well as provide an assessment on capacity beforehand).

An Example

A recent case has illustrated the (costly) consequences of not adhering to these strict rules.

Ms Rosemary Hill instructed will writers Legal Love Letters shortly before her death in 2018 to prepare her will which left £1,000,000 to 4 charities.

The issue was that the witness, Ms Cheryl Penry, the owner of the firm and friend of the deceased, witnessed the will first on her own before a second witness was procured from the office.

This case was reported in the Times.

The 2018 will was deemed invalid and probate was instead granted on a prior will made in 2014 which did not contain the donation to the 4 charities.

The 4 charities are now bringing a claim for professional negligence against the firm, as potential beneficiaries are owed a duty of care in addition to the deceased as established in the case of Ross v Caunters (1980).

This case has yet to be decided.

Final Words

A will is an important document and where possible proper professional advice should be sought to prepare, execute and witness this.

A technicality can have serious consequences.

Will writers are not regulated in the same way as solicitors and they may or may not have indemnity insurance to compensate for things that go wrong.

If you have concerns about the validity of a will or believe it has not been properly witnessed, our experienced Dispute Resolution team can help. We specialise in contesting wills and advising on inheritance disputes. Contact us today to discuss your case in confidence. Call 0330 822 3451 or request a callback at a time that suits you.