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You have gone to the trouble of considering what should happen to your estate on your death and prepared a Will so that your family are provided for. Whether you have prepared the Will yourself, completed a form over the internet or instructed a solicitor to draft it, the most important thing is to ensure that it is signed and witnessed correctly otherwise the Will is not valid.
The law on executing a Will in England and Wales is contained in S.9 Wills Act 1837 (as amended).
The provision provides that:
No Will shall be valid unless-
- It is in writing, and signed by the testator, or by some other person in his presence and by his direction; and
- It appears that the testator intended by his signature to give effect to the Will; and
- The signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
- Each witness either-
- Attests and signs the Will; or
- Acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witnesses), but no form of attention shall be necessary.
Does a will need to be witnessed
The short answer is yes. However, there is an exception for Privileged Wills.
Certain persons by reason of their occupation do not need to conform with the formalities set out under S.9 Wills Act 1837. Such Wills can me made orally as well as in writing and do not need to be witnessed. The privilege is allowed for the following three categories of testator:
- Soldiers in actual military service
- Mariners or seaman at sea
- Members of Her Majesty’s naval or marine forces in actual military service
Who can witness a will
It is advisable to have “independent” witnesses to your will. Independent means not family members and someone who is not a beneficiary of your Will as this could cause problems and delays in the administration of your estate. The witnesses should be 18 or over and understand that they are witnessing your Will. The witness does not necessarily have to know the contents of your Will. Friends, colleagues and neighbours are perfectly acceptable.
If a beneficiary of your Will signs as a witness, s.15 Wills Act 1837 says that the gift to them will fail unless the Will is still valid without that witness/beneficiary’s signature. S.15 also states that if a beneficiary’s spouse were to witness the Will, that beneficiary’s gift would still fail.
If it is likely that someone may challenge your Will on the grounds of undue influence or lack of mental capacity, it may be preferable to have a professional to act as your witness such as a solicitor or doctor who will make contemporaneous notes cover those issues should a challenge arise.
How many witnesses are needed for a will
The minimum number of witnesses for a Will is two people which is more than for any other legal deed.
It is important to note that both witnesses must be present at the time of you signing or acknowledging your signature and you must also be present at the time they sign your Will.
Dating a Will is not a legal requirement but practically, it helps to establish which Will is the latest copy if you have more than one. Often Wills contain revocation clauses and therefore, a date will establish which Will is the earlier document to be revoked.
Statutory Wills
A Statutory Will is a Will executed on behalf of someone who lacks the mental capacity to make a Will themselves. The Court of Protection empowers “the authorised person” (usually the Deputy put in charge of the person’s affairs) to execute the Will. Under s.97(1), the Will shall be expressed to be signed by the patient acting by the authorised person, and shall be –
- Signed by the authorised person with the name of the patient, and with his own name, in the presence of two or more witnesses present at the same time, and
- Attested and subscribed by those witnesses in the presence of the authorised person, and
- Sealed with the official seal of the Court of Protection.
Next Steps
More information can be found on our Wills, Trusts & Probate section.