Wills are critical legal documents that must be accurately written, signed, and witnessed for your wishes to be carried out after your death.
But how do you properly witness a Will and have yours witnessed in turn? Several caveats come with being a witness that must be followed for the Will to be valid.
The role of witnesses is vitally important to your Will. Witnesses confirm that the testator, the person who has written the Will, is the same person to sign it. Two witnesses must be present when the testator signs the Will for it to be valid. Along with confirming the identity of the testator, the job of witnesses is to corroborate that:
- The signature on the Will isn’t forged
- The testator isn’t being coerced into signing their Will
- The testator has the mental capacity to sign and understand their Will
However, witnesses do not need to read the Will or know what it contains for it to be valid. They simply need to sign it and give their name, address, and occupation.
Both witnesses need to witness the signing of the Will at the same time. If either witness is unable to attend the signing of the Will or acknowledge the signature, the Will may not be valid, and questions surrounding its validity could be raised at a later date.
Due to the COVID-19 pandemic, witnesses can sign a Will remotely in England and Wales. However, this is not the case in Scotland, where all Wills must be signed in person.
How to Choose Witnesses
Some stipulations must be followed when choosing witnesses for your Will. These include:
- The witnesses must be over 18
- The witness must be of sound mind
- Both witnesses must be able to see
Witnesses must not be:
- A beneficiary of the Will – if a beneficiary witnesses the signing, any gifts to them will fail, although this has no bearing on the rest of your Will.
- The spouse or civil partner of the testator or beneficiary
Executors of the Will can also be witnesses. However, if they are a professional who is benefitting from a clause in the Will, they may not be an appropriate witness and could lose the clause and fail to be paid. Therefore, it is best to strive for impartiality when selecting witnesses.
Ideal witnesses could be a neighbour, friend, or work colleague who is not benefiting from the Will. Lawyers can additionally serve as witnesses if you would like someone who is genuinely impartial.
If you are elderly or seriously ill, there may be questions about your mental capacity to sign. A general practitioner (GP) or psychiatric professional can witness your Will if your solicitor insists, as they will be able to confirm that you were in sound mind at the time of signing.
Should one or both witnesses die before the testator, this doesn’t invalidate the Will in any way. Although witnesses may be contacted if any questions are raised about the Will, the death of witnesses does not automatically invalidate it. However, it can lead to complications when administering your estate. If one of your witnesses passes away before you, you could consider creating a new Will to avoid this.
Refusing to Witness a Will
It is possible to refuse to witness a Will. You can abstain for any reason, whether that is personal or legal. You may refuse if:
- The person signing is not the testator
- The testator doesn’t appear to have the mental capacity
- The testator may have been coerced into signing
- You are a beneficiary or the partner of a beneficiary
- You do not feel impartial enough to the Will
Complications of an Improperly Witnessed Will
Like many other legal documents, Wills have a large scope of error. If any mistakes are made, there may be complications when executing your estate. If the requirements of a legal signing are not followed, the Will could be invalidated and the wishes within overlooked. The assets may be distributed to someone not named or divided up in a way not desired by the deceased.
Therefore, it is vitally important that a Will is witnessed correctly so that it can be executed smoothly. This makes everything easier for the loved ones of the testator. The testator can also relax knowing that their wishes will be carried out upon their death.
Wills are delicate documents that must be watertight. Though witnessing a Will sounds simple in principle, it is easy to slip up and create problems in the future. A witness must be impartial and have no stake in the Will, and they mustn’t be a spouse of any beneficiaries either.
Want to learn more about creating and witnessing Wills? The Planning Bee is here to help. Contact our expert team of paralegals today to discuss your options and our services.