What is a witness?
In order for a will to take effect, it must be correctly signed by the testator (the individual making the will) as well as two independent witnesses. Anyone over the age of 18 with mental capacity can witness a will, such as a neighbour, friend, GP, solicitor or members of staff at a bank. The witnesses must not be related to the individual or have any personal interest in the will itself. The role of a witness is to ensure that the same person who has written the will is also the one signing it.
Why are witnesses important?
The main role of a witness is to confirm the identity of the individual who has created the will and to prevent fraud through false signature and coercion. Wills are a written expression of a person’s desires and therefore quite personal, by having the correct witnesses in place, this ensures that the will is valid and can be executed as intended by the individual.
Refusing to sign a will
There are situations where you can refuse to sign a will, these include (this is not a definitive list, so please use your own judgement when taking on such responsibility):
- If you feel the individual whose will you will witness does not have sufficient mental capacity e.g. dementia, brain injury, a disability or a mental illness;
- If you are named as a beneficiary of the will or are related to the individual, you should not sign as a witness,as this could cause disputes later on;
- If you believe the individual is being forced into creating the will; or
- The person signing the will is not the testator.
If you have any doubt as to the testator’s identity or ability, you should refuse to sign the will.
The consequences of incorrect witnessing
If a will is not executed correctly, it will become invalid and could lead to a previous will being considered (if there was one previously) or the intestacy rules would apply. These are a set of rules which govern how property (estate) is divided up if a person dies without leaving a valid will and can result in unfavourable outcomes in some cases. Therefore, it is important to seek legal advice if you are considering making a will or already have one but need it witnessed. Our experienced solicitors can guide you on the most appropriate way to witness your will, depending on your situation.
This article is for the information purposes only and does not constitute legal advice. For further information, please contact us via email at hello@my-local-solicitor.com or call us on 01244 478730.
Author: Mahum Fatima
