Does a Will need to be witnessed?

The laws setting out the requirements for a valid Will have remained largely unchanged since 1837.  One of these requirements – set out by sections 9(c) and (d) of the Wills Act 1837 – is that the signature of the person creating the Will (the testator) must be made or acknowledged in the presence of two or more witnesses present at the same time.  Each witness must also then either:

• Attest and sign the Will; or
• Acknowledge his signature

in the presence of the testator.  So what does this mean?  How do you validly witness a Will?  What problems might arise if a Will is not validly witnessed?

In practical terms, the witnesses need to see the testator signing the Will.  The witnesses do not need to know that the documents is a Will.  They do not have to see the rest of the document.  It can be covered or redacted but they must see the signature.  Both witnesses must also be present at the same time.

Afterwards the witnesses must sign or acknowledge the Will in the presence of the testator.  It is not essential that the witnesses do this in the presence of each other (so one could leave the room whilst the other signed and vice versa).  However, it is much more straightforward for the witnesses to sign at the same time.  The testator must be able to see the witnesses signing the Will.

If the witnesses are not together when they sign the will, it is sufficient for their respective signatures to be acknowledged (i.e. for one witness to confirm to the other that a signature is his) providing that this acknowledgement complies with the strict requirements set out above for the testator and witnesses to be present.  Such acknowledgement does not need to be formal – in the past, the Court has held that the discussion of the Will by a testator in the presence of witnesses amounted to an acknowledgement.

A beneficiary named in the Will must not be a witness.  If they are, then this will invalidate any gift to that beneficiary in the Will.

If your Will is drafted by a solicitor, they should advise you about how to sign the will properly and offer to assist you with this.  They should offer to witness the Will themselves at their offices or to visit you at your home.  A Will drafted by a solicitor may also contain an attestation clause confirming that the formalities set out by the Wills Act 1837 have been properly complied with.  This can be very helpful in preventing disputes as to whether the Will is a valid document because any Court looking at the matter will start from the presumption that it has been executed properly.

Problems can arise with homemade Wills or where witnesses claim that they did not actually witness the Will.  They may claim that they were not present or that it is not their signature.  If a Will fails to comply with the strict requirements set out above, it will not be legally binding.  An earlier Will might be valid (so long as it has been signed and witnessed properly).  If there is no earlier Will, then the estate will be governed by the rules of intestacy.

Where a will appears not to have been executed properly, there might be  expensive and protracted legal disputes to determine whether the Will is a valid document.  It can also lead to claims being brought against the estate under the Inheritance (Provision for Family and Dependants) Act 1975 by eligible beneficiaries who will miss out on their inheritance if the Will is not a valid document.

To prevent this, we recommend that you always seek legal advice when you are creating a new Will.  It is far easier and cheaper to resolve any issue with execution during your lifetime. If you have concerns about the Will of a loved one who has passed away, please do not hesitate to contact a member of our Contentious Probate team.