23 March 2020 update
Self-isolation and wills: emergency legislation considered
In these unique and challenging times, we and the profession as a whole are seeing an increase in enquires from people looking to make or update their will due to COVID-19 Coronavirus.
The profession has mobilised to meet this demand and the government has designated solicitors involved in the execution of wills as ‘key workers’ to try to meet this demand.
The very nature of what constitutes a valid last will and testament, as defined by the Wills Act 1837, currently presents some logistical difficulties. While instructions can be taken remotely and drafts e-mailed for printing, to make your will legally binding you and your chosen witnesses must physically sign the document with a wet signature and you all have to be physically present to do so.
Original article published in November 2016
The information is accurate but please refer to the above for specific advice relating to wills and the COVID-19 Coronavirus pandemic.
You have finally decided to write your will. You have decided on who should benefit from your estate in the event of your death. You have listed all of the gifts you want to make to loved ones. You have decided who should be guardians of the children in the event of the unthinkable and you have decided where Baxter the dog should go if you outlive him. You are organised, you have gone to the solicitors to have your will drafted. You have approved your draft will, you have the final version all bound and “official looking” in your hands. What next? What actually makes your instructions on a piece of paper a legally binding document?
1.9 of the Wills Act 1837 states that:
“No will shall be valid unless—
(a) it is in writing, and signed by the testator, or by some other person in his presence and by his direction; and
(b) it appears that the testator intended by his signature to give effect to the will; and
(c) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
(d) each witness either—
(i) attests and signs the will; or
(ii) acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness),
but no form of attestation shall be necessary.”
As you can see, the witnessing of a will plays a huge part in making your will a legally binding document. But, who do you choose to make your will valid? The role of a witness is to confirm that the will has been signed by the person making it. By signing the will as a witness, you are verifying that you have watched the testator sign or acknowledge their signature. It is as simple as that.
Although not a legal requirement, dating your will is advisable. If you have made more than one will, a clearly dated will makes it clear which is your most recent will.
Essentially, anyone can witness your will, as long as they are of sound mind, not blind and over 18. However, there are strict rules about beneficiaries or spouses / civil partners of beneficiaries signing, more of which below.
Witnesses may have to provide sworn statements about the circumstances in which the will was signed. There could be queries regarding the signature, claims regarding the mental capacity of the person making the will or allegations regarding any undue influence being placed on the testator before the will was signed. Here are some factors to consider before choosing the ideal witnesses to your will.
Beneficiaries of your will
Under s.15 Wills Act 1837, if a beneficiary of your will were to witness your will, any gifts to them fail.
S.15 also states that if a beneficiary’s spouse were to witness the will, that beneficiary’s gift or share would fail too and thus you have the same problems as if the beneficiary had signed the will.
Elderly people
With elderly people witnessing your will, there is a higher probability that they may die before you and would be unable to answer any questions about the will being signed. Of course, the elderly can be witnesses to wills; this is more of a practical factor to consider.
People from a different country
If any questions were raised regarding the signing of your will, it helps to have witnesses would who are easily traced to minimise delays in the administration of your estate. Again, people who do not live close to you can be witnesses to wills; this again is just a practical factor to consider.
Who can I ask to witness my will?
It is advisable that you choose independent people to witness the will; independent from you (family members witnessing the will could cause problems and potential delay in the administration of your estate); and independent to the contents of the will.
Friends, neighbours and work colleagues can be ideal witnesses. It is important to note that your witnesses can be married to each other. If you have a close relationship with your bank, you could ask the members of staff to be witnesses to your will. Lawyers can also witness your will. If you are elderly, or your mental capacity may be questioned, then it may be advisable to have your GP, or a specialist psychiatric professional witness your will, and indeed if capacity is an issue your solicitor may insist upon it.
Are you a private person and worried that your witnesses will know the contents of your will? As discussed, the role of a witness is simply to confirm that the will is signed by you. As such, the witnesses need not read the contents of your will.
In most cases, the attestation page of a will – the page that you and the witnesses sign – is at the back of the will. However, if you make any amendments to the main body of the will, these need to be signed by you and the two witnesses. In this instance, the witnesses would see the content, or part of, the will.
Presence of two witnesses
An important factor to understand when considering who can be a witness to your will is that both of your witnesses must be present at the same time. They must both watch you sign your will, or must both be in attendance when you acknowledge your signature.
Making a will is an important part of prudent estate planning. You are deciding who should receive your estate after your death and making the administration of your estate as worry free as possible. You have made the big step of having a will prepared, you have gone to the effort of finding two witnesses so it is important that your will is signed correctly to make your wishes legally binding.
