There are certain formalities that must be complied with when a client signs their will and when the signature is being witnessed. If these requirements are not met, it can often result in problems after the client (known as the testator) has passed away.
The signing of the will and its attestation (a clause within the will that explains the circumstances in which it was signed and witnessed) are of the utmost importance. If done incorrectly, the client’s estate will fall under the Intestacy Rules which are laid out in The Administration of Estates Act 1925 and The Inheritance and Trustees Powers Act 2014.
Requirements for witnessing a will
The Wills Act 1837 Section 9 sets out the main rules for the execution of a will. These are as follows:
- The will must be in writing and signed by the testator, or by some other person in his presence and by his direction
- The testator intended by his/her/their signature to give effect to the will
- The signature made by the testator is acknowledged in the presence of two or more witnesses present at the same time and;
- Each witness either attests and signs the will, or acknowledges the signature in the presence of the testator
(To find out more about who can make a will, see our previous article here.)
The role of a witness is to confirm that the will has been signed by the testator. For a will to be valid, it must be witnessed by two witnesses who are both present, physically and mentally, when the testator signs their will, or when the testator acknowledges their own signature.
Who can be a witness?
To be able to witness a will, the person must be aged 18 or over, have the required mental capacity, and cannot be blind. Their main role is to confirm that the will has been signed by the testator and that they have witnessed the testator sign or acknowledge their own signature.
A beneficiary can also be a witness. However, this act disqualifies them and their spouse or civil partner from receiving a benefit under the will.
It is also inadvisable to let any family member be a witness to the will. Even if they are not a named beneficiary in the case, they have a legitimate claim to be a residuary beneficiary in the future.
Witnessing amendments to a will
Witnessing is also a requirement should the client wish to make amendments to their will. Any alterations to the will can be made on the original document, however, these alterations must be signed or initialled by the testator and witnessed by two witnesses, who must in turn also sign or initial the amendments.
Certain words can also be removed from the will by the testator if it’s clear the testator intended to remove that particular part from their will. If a testator wishes to make changes such as the above, it’s advisable to make a new will as the legitimacy of amendments can be hard to prove in court.
Virtual witnessing of a will
During the pandemic, the rules for witnessing a will were changed to comply with isolation and social distancing requirements. The new rules for remote witnessing of a will can be found here.
The importance of compliant witnessing
Witnessing of a will is not simply a legal obligation. It also helps ensure the testator’s wishes are carried through following their death. If the will should ever be called into question, the witnesses can be called upon to testify that the requirements were complied with when the will was signed.
Having the correct witnessing in place to ensure a will is compliant at the time of its signing and attestation is crucial. Failure to do this could result in the will being declared invalid, causing the testator’s estate to fall under the Intestacy Rules.
For more in-depth information on requirements for will writing and attestation, see our articles on ‘Who can Make a Will’ and ‘The importance of executing deeds and documents correctly’.
This article was submitted to be published by CTT Group as part of their advertising agreement with Today’s Wills and Probate. The views expressed in this article are those of the submitter and not those of Today’s Wills and Probate.