Writing a legally binding will is the only way to make sure that your wishes are followed when it comes to what happens to your money, assets, property and children when you pass away.
But, for a will to be legally valid, it must be witnessed correctly, by the correct people.
In this article, we'll explore the rules around witnessing a will in the UK including:
Who can be a witness;
What their role is;
How many witnesses are needed;
How to witness a will
When it comes to making a will, you might wonder why you need a witness in the first place.
What does a witness do?
Witnesses make sure the person making the will (the testator) is of sound mind and not under any undue influence. They also confirm that the testator's signature is genuine.
A witness to a will has several responsibilities. They should watch you sign the will and make sure that the document is complete.
They should also confirm that it's your will they are witnessing. Their signature and the date of witnessing must be added to the will and you must make sure you sign the same document.
How many witnesses need to sign a will?
Two witnesses should sign a will to make sure it is valid.
Who can witness a will?
A witness to a will should be an independent adult who doesn’t stand to benefit from the will in any way. They should also be deemed competent and mentally able to witness the will.
Can a family member be a witness?
It’s generally not a good idea to have a family member as a witness as once they become a witness they can’t benefit from the will.
The law prefers impartial witnesses. This means that they should not be related to you or stand to benefit from the will in any way. This helps to prevent future potential conflicts of interest.
Can two people from the same household witness a will?
A couple who live in the same household can witness a will, as long as they aren’t beneficiaries. For example, you can ask a friend and their partner to act as a witness, providing you don’t intend to leave them anything in your will.
Can a spouse or civil partner witness a will?
A spouse or civil partner should not act as witnesses to a will. Nor should the spouse or civil partner of a beneficiary.
This is because, if they do so they lose any claim on the estate and forfeit any inheritance.
Can a beneficiary be a witness?
A beneficiary can be a witness to a will. However, the moment they sign as a witness they will no longer be a beneficiary.
This can lead to a lot of confusion and complexity later on. It is advisable to choose an independent party, who is unrelated to you and does not stand to benefit from the will to act as a witness.
Can an Executor be a witness?
An executor can be a witness to a will, as long as they aren’t a beneficiary, or the spouse or civil partner of a beneficiary.
Can a solicitor witness a will?
A solicitor can act as a witness to will, as well as help you write your will. Often, individuals might choose this route to avoid any confusion or potential future problems. What’s more a solicitor might be able to suggest a second witness (i.e. a colleague or assistant) who can witness with them.
The advantage of having a wills, trust and probate solicitor witness your will is that you can guarantee their independence and impartiality. It’s important to note, however, that a solicitor will charge for the service of witnessing a will.
Can a stranger witness a will?
Technically, yes, a stranger can witness a will. However, it’s probably not the best idea. If your will is contested, witnesses can be called on to give evidence. If you appoint a stranger, it might be difficult to locate them in the event they are needed, which wouldn’t be ideal!
Who is not allowed to witness a will?
There are several categories of people who are not permitted to be witnesses:
Anyone under the age of 18.
Individuals lacking mental capacity.
People who do not understand English and cannot communicate in any other way.
Anyone who is blind or cannot physically see you sign the will.
Does a witness of a will need to read it?
A witness doesn't have to read the entire will. However, they should be aware that they are witnessing the signing of a will.
They must also confirm that the document is being signed voluntarily and without any undue influence, pressure, or fraud.
How do you witness a will correctly?
To witness a will correctly, follow these simple and clear steps:
Be present when the testator signs the will.
Confirm that the testator understands they are signing their will.
Ensure the document is complete.
Watch the testator sign the will.
Sign the will yourself as a witness.
Add the date of witnessing.
Be clear, and your signature should be easily recognisable.
Can you witness a will virtually?
As of 31 January 2020, witnessing a will virtually was temporarily allowed due to the COVID-19 pandemic in England and Wales. The legislation applies to wills made up until 31 January 2024, however this may be shortened or extended if deemed necessary, in line with the approach adopted for other coronavirus legislative measures. The Government will consider whether to change the law permanently in due course.
When witnessing a will virtually, the type of video-conferencing or device used is not important, as long as you and your two witnesses each have a clear line of sight of the writing of the signature.
To reflect this, you could use the following example phrase:
‘I first name, surname, wish to make a will of my own free will and sign it here before these witnesses, who are witnessing me doing this remotely’.
Witnessing pre-recorded videos is not allowed - the witnesses must see the will being signed in real-time.
You must be acting with capacity and in the absence of undue influence. If possible, the whole video-signing and witnessing process should be recorded and the recording retained.
The advice remains that where you are able to make wills in the conventional way, you should continue to do so.
It's crucial to check the latest government guidelines or consult with a legal professional to understand the current rules regarding virtual will witnessing.
Is a will still Valid If a witness dies?
If a witness to your will dies, it doesn't invalidate your will as long as it was properly executed at the time it was signed.
What are contemporary witness statements?
Some individuals choose to include contemporary witness statements as part of their will.
These are statements signed by the witnesses and testator confirming the will's proper execution. Such statements can be used to support the will's validity in case of a legal challenge.
To ensure that your will is properly executed and to reduce the potential for disputes, it's wise to consult with a solicitor or legal professional who specialises in wills and estate planning. They can guide you through the process and help you take all necessary precautions.
Get legal advice on creating a will
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