The question of remote witnessing of wills has very much been in the spotlight lately in view of the need to amend the rules as a result of the COVID-19 pandemic but one area that often gets overlooked and/or forgotten is the question of who can witness a will?
The legal requirements of a valid will
Under Section 9 of the Wills Act 1837 (“the Act”) no will shall be valid unless:
It is in writing and signed by the testator or by some other person in his presence and by his direction; and
It appears that the testator intended by his signature to give effect to the will; and
The testator’s signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
Each witness either attests or signs the wills, 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 is necessary.
As a result of the recent amendments to the Act for the purposes of the last two points, “presence” includes presence by means of a videoconference or other visual transmission.
Who can witness a will?
Where there are no requirements for witnesses to have any specific knowledge of the document that they are signing or even knowledge that they are signing a will, the law does place restrictions on who can act as a witness.
A blind person cannot be a witness. In addition, there are various persons who, in principle, can be a witness but who testators would be best advised not to use:
A person who is not mentally competent to give evidence because of the difficulty in obtaining reliable evidence from them;
A child as unless they are able to give credible evidence as regards the signing and witnessing of the will;
Any person who may inherit all or part of an estate as a result of the Intestacy Rules if the will is subsequently challenged at a later date as they would a conflict as regards the validity of the will as they stand to gain from its invalidity;
Any person who is also named as a beneficiary in the will. Whilst the will would still be valid, any gift to the beneficiary witness would not be. This rule also applies to any spouse or civil partner of a beneficiary acting as a witness.
The validity of gifts to beneficiary witnesses
The rule that gifts to beneficiary witnesses are void does not apply to a witness who subsequently marries a beneficiary. In that case, the will would still be valid as would the gift to the beneficiary.
A gift to a beneficiary witness would also not be void if the will had been formally witnessed by two other witnesses who do not take any benefit under the will. In practice, however, it is very rare that any will is witnessed by more than two witnesses.
The execution of any subsequent codicil document reconfirming the contents of the will would also mean the gift to the beneficiary witness to the will was valid, provided that the beneficiary was not also a witness to the codicil document.
Given the rules governing who can witness a will, it is vitally important that will writers make enquiries as regards a proposed witness’ relationship with the testator and beneficiaries to avoid gifts being held void and the validity of the wills themselves challenged. If in doubt, best practice would be to ensure that the will is witnessed by two entirely independent witnesses.
Presumption of due execution
If it appears on the face of the will that the formalities set out in Section 9 of the Act have been complied with and there are no issues as regards the identity of the witnesses and their ability to witness the will then the law allows the court to presume that the will was validly executed and expressed the testator’s intentions. Such presumption can be rebutted. However, as Neuberger LJ said in Perkins  the “strongest evidence” is required to rebut the presumption. However, each case will turn on its own individual facts and there will be some cases where the presumption is stronger and others where it is weaker.
There are very good public policy grounds as to why the rules exist in relation to not only who can witness a will but also the validity of gifts for witnessing beneficiaries. Save for the exception of the recent amendment to the Act as regards remote witnessing of wills, very little has changed for many years in this respect. However, the Law Commission is now actively looking at not only the law relating to witnessing by beneficiaries but also the procedure for witnessing wills itself. Whilst no formal announcements have yet been made, many practitioners believe that the law will be changed to bring the rules up to date with modern living arrangements – for example, amending the rules so that a gift to a cohabitee of a witness should be void (as it is already is for a spouse or civil partner of a witness). For now, practitioners and testators, however, should remain alive to the current provisions of the Act and ensure that sufficient enquiries are made to ensure compliance and avoid the possibility of a challenge to the will, on grounds of undue execution in any event.
Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.
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