When making a Will in England or Wales, you need to sign it in front of two independent witnesses in order for the Will to be valid. There are rules around who should and shouldn’t be allowed to be a witness.
Who Should Not Witness Your Will?
Interestingly the laws around who can’t act as your witness are fairly relaxed in that it won’t invalidate your Will. However, the purpose of having two witnesses is to prove, if required, the circumstances around the actual execution of it. This creates the need to have adequate witnesses who, if required, could give credible evidence – for example witnesses who are adult, competent and independent.
We would always advise that the following people should not be your witnesses:
- Family members
- Your husband/wife or civil partner
- Any of your beneficiaries, who are the people you intend to inherit from your Estate
- The husband/wife or civil partner of a beneficiary in your Will
- Anyone under the age of 18 years of age
- Anyone who is blind or partially sighted
- Anyone who does not have sufficient mental capacity to understand what they are witnessing
If any of the above are witnesses to your Will, it could cause problems after you pass away. For instance, the law states that if a witness of the Will or their spouse is named as a beneficiary of the Will, then the law provides that the witnessing remains valid but the actual gift to the witness (or their spouse) fails.
The independence of the witnesses are key because it could be claimed that you were placed under pressure to sign the Will. A witness must also be able to watch you sign the Will and see that it is your signature. This is in case anyone challenges the Will after you die. When this happens, the witnesses may be called upon to give evidence and confirm that you did indeed sign your Will, and that you did so willingly. It’s for this practical reason that people who are blind or partially sighted should not be witnesses.
Who to Choose to Witness Your Will?
As family members and beneficiaries aren’t considered as independent, you might feel like there aren’t many other people you can ask to witness your Will. But anyone else you know who isn’t a beneficiary can be a witness, such as a friend, neighbour or colleague.
When making a Will you’ll need to choose Executors who will administer your Estate after you die. An Executor can be a witness of your Will, just as long as he/she (or their spouse) isn’t also a beneficiary.
You could also ask your GP to be a witness. This is particularly advisable if you’re vulnerable and your own mental capacity could be questioned, perhaps due to old age, an illness you’re suffering from, or medication you’re taking. Having a GP witness your Will helps rebut a later allegation that you were not of sound mind when you signed your Will or that you did not understand what you were signing.
Remember that whoever you choose, both witnesses must be present when you sign your Will. Therefore you’ll need to find a time when your witnesses can attend at the same time. Your witnesses will then need to sign the Will, and you should all remain in the same room and watch each other while that takes place.