What Are the Legal Requirements for Witnessing a Will?

If you are drafting a will by yourself or are having one drafted by a legal professional, it is crucial to make sure that the will is both signed and witnessed correctly for it to be legally valid.

The governing law in England and Wales on the execution of wills is s.9 Wills Act 1837 (as amended).

Validity of a will

This provision outlines that no will shall be valid unless:

• It is in writing and signed by the testator or by another person in the testator’s presence and by their direction.
• It must appear that the testator intended by his signature to give effect to the will.
• The signature must be made or acknowledged by the testator in the presence of two or more witnesses present at the same time.

Each witness must either:

• Attest or sign the will; or
• Acknowledge his signature in the presence of the testator (but not necessarily in the presence of any other witnesses, but no form of attestation shall be necessary.

Any will that is made on or after 31st January 2020 and on or before 31st January 2024 can obtain the ‘presence’ of a witness through videoconference or other visual transmissions.

The importance of witnessing a will 

The case of Payne v Payne [2018] highlighted the importance of witnesses and their role in creating a valid will.  

The deceased, John Payne, had two wills, or purported wills. The first was produced in 1998, which left the entirety of John’s estate to his second wife, and the latter was produced in April 2012, which appointed John’s son, from his first marriage, and grandson as executors of the will, leaving John’s son the entirety of the estate.

There were issues with both wills:

The first will, despite having the names, addresses and occupations of the witnesses, had not been signed by the witnesses. 

•  When witnesses were asked to give evidence in court, they explained that Mr Payne had called both individuals to his house to witness the execution of the will but sat and drank a cup of tea together.
• The latter will had not been witnessed correctly, and the evidence of both witnesses given at trial was considered ‘utterly unreliable’ by the judge.

These issues caused both wills to be invalid as they did not comply with the s.9 requirements.

However, on the appeal of this decision, the earlier will was validated due to the will not having space for witnesses to provide their signatures, and by adding their personal details to the will, there was the intention of attesting to it.

This case not only clarifies the practical points surrounding the witnessing of a will, but also highlights the importance of using reliable witnesses in a will and having your will drafted by a legal professional to ensure that errors do not arise.

If you need assistance with your wills and estate planning or have concerns about the execution of a will, please contact our Wills, Trusts and Probate Solicitors below.