Witnessing your will
Why is it important for a will to be witnessed?
For a will to be valid it must ordinarily be signed by the testator (the person whose will it is) and the testator’s signature must be witnessed by 2 or more witnesses present at the same time. If the testator’s signature is not witnessed the will is likely to be invalid. If the will is invalid upon the death of the testator his or her assets may be distributed other than in accordance with his or her wishes.
What are the formalities for witnessing a will?
The testator’s signature
A testator must either sign his or her will or acknowledge his or her signature in the presence of 2 or more witnesses. The witnesses should be present at the same time.
If the testator has already signed the will the witnesses must see, or have the opportunity to see the testator’s signature.
Attestation of the will
Once the testator’s signature has been made or acknowledged by him or her each witness must “attest” (confirm that they believe that the signature is that of the testator) and sign the will or acknowledge the testator’s signature, in his or her presence.
The witnesses can sign their names on any part of the will, although it is normal for them to sign at the end of the will. If the signatures of the witnesses are on a separate page of the will from the signature of the testator it is important that the separate pages are attached to each other.
It is not essential for the witnesses to sign in the presence of each other, although it is good practice that they do so in case there is any doubt in the future as to whether the will was properly attested.
Normally the will will contain a formal attestation clause and it is good practice to include such a clause to show that the requirements have been complied with. Where a proper attestation clause exists the law will presume that the will has been properly attested. However, the absence of a formal attestation clause will not necessarily invalidate the will. If the will does not contain an attestation clause it will normally be necessary to obtain an “affidavit of due execution” from one of the witnesses before probate can be obtained. This may not be possible if, for example, the witnesses die before the testator, which is another good reason for including an attestation clause in the will.
Who can witness a will?
A will can be witnessed by an executor, a creditor, the spouse or civil partner of the testator or a beneficiary or the spouse or civil partner of a beneficiary. However, any gift made in a will to such a person will be void if they witness the will.
A blind person is not normally capable of witnessing a will. Similarly, a person of unsound mind is generally not capable of witnessing a will.