Witnessing a Will

Once you have drafted your Will, you need to make it legally binding, otherwise, it will just be a piece of paper. Witnessing a Will is a crucial step to validate the content, and if done wrong, you could risk dying intestate.

Unfortunately, witnessing a Will is not as simple as pulling two people in a room and arming them with pens. There are strict rules around who is and isn't allowed to witness a Will, and what is involved in the process.

What Is the Role of a Witness?

The role of the witness is a simple yet crucial one – they are there to bear witness that the testator (the person who drafted the Will) is the same person who is signing it. The testator needs to sign the original Will in the presence of the witnesses, and the witnesses must in turn sign in the presence of the testator.

The witnesses do not have any further legal responsibility once they have signed the Will, aside from accepting the responsibility of being called on if the validity of the Will is challenged. Disgruntled beneficiaries or people who have been excluded from the Will might contest the content, claiming that the testator was under duress, mentally unfit, or that the signatures were forged, in which case, the testimony of the witnesses could prove vital in the case.

What Is the Process of Witnessing?

The process itself is uncomplicated. The testator and the two selected witnesses simply meet up at the same place. The testator must then explain to the witnesses that they are about to sign a Will, but they do not need to read it or know what it contains. The Will is then dated, and the testator initials all the pages. Aside from both parties witnessing each other during the signing, the witnesses also need to provide their full birth names, occupation, and physical address, in block capital letters, clearly, and in ink.

No one is allowed to leave the room at any point until the Will has been signed and sealed so to speak. A Will can be declared invalid on the simple ground that "due execution" in the process was not followed.

Who Should Be a Witness?

To ensure impartiality, two witnesses who have no stake in the Will can bear witness. In a nutshell, beneficiaries who stand to gain from your Estate should not witness your Will. While it will not invalidate your Will if a beneficiary signs, they will forfeit their portion of the Estate. A list of people who should not be asked to witness include;

• A spouse or civil partner
• Spouses or civil partners of beneficiaries
• Family members
• Minors under the age of 18
• Anyone who is blind or with only partial vision
• Anyone who is not of sound mind
• Someone who doesn't reside in the UK

If you fear that your mental capacity will be brought into question, it is a good idea to ask your doctor to be one of the witnesses to confirm your state of mind. Executors are also allowed to doubly act as a witness. Neighbours, colleagues, and close family friends are also ideal.

Can A Witness Refuse the Responsibility?

A witness can not only refuse but should refuse if they feel that;

• The person signing the Will is not the testator
• They are not sure of the testator's mental state
• There is a suspicion that the testator was pressured to draft the Will
• They are aware that are a beneficiary.

Can the Will Be Declared Invalid If One Witness Dies?

The testator might have drawn the Will many years before their passing, and a lot can happen in the interim. If one of the witnesses should die before the testator, the Will remains valid. It does present a problem if the Will is being contested though, especially if there is no one left to testify for its validity. It is therefore recommended to have at least one witness over the legal age, but younger than the testator. Asking a significantly older person to bear witness is not the best course of action.