Witnessing a Will: don’t make this costly mistake

What you need to know about witnessing a Will

When signing a Will, it’s necessary to have it witnessed in order for it to be legally binding. But asking the wrong person to be a witness could be a costly mistake, leaving those you want to inherit being left out altogether. This is particularly pertinent if you’re creating a homemade Will. Here, we discuss who can witness and why it’s so important to get this right.

Who can witness a Will?

Any witness of a Will must be 18 or over, with the mental capacity to bear witness. They must also not be a beneficiary, or be related to the testator (the person making the Will). The witness must also have no personal interest in the Will.

Ideally, a witness would be a family friend or neighbour who has known the testator for several years. In some cases, the legal firm that is handling the Will writing process can provide a witness. In England and Wales, two independent witnesses are required, while in Scotland only one is necessary.

Witnessing a Will requires the physical act of seeing pen be put to paper. That means that blind or visually impaired individuals cannot be witnesses.

Why is my choice of witness important?

Your Will is a legally binding document that sets out how your estate is to be distributed after your death. As such, it’s vital to ensure the correct processes are followed in order for it to remain valid. Asking a beneficiary of the Will, or their spouse or partner, to witness the signing results in that beneficiary forfeiting the right to their share of the estate. Obviously, this is something to be avoided, which is why you must never choose a beneficiary or their partner to be a witness.

Can Wills be witnessed virtually?

In response to the Covid-19 pandemic, an amendment was made to the Wills Act 1837, enabling Wills and codicils to be witnessed virtually. While the legislation is due to end on 31 January 2024, it does enable those needing to isolate to have their Wills witnessed legally. Of course, certain criteria apply:

  • The Will must be signed in real time via a live video link
  • The witness must have a clear view of the signature being written on the document itself
  • The testator themselves must be visible, and if the witness doesn’t know the testator, the latter must verify their identity with a passport or driving licence
  • The testator must make a declaration to the camera, proving they have the testamentary capacity to make the Will
  • The video should be recorded and retained in case the Will is challenged

Before making a Will, it’s advisable to speak to a Kent tax advisor about how to reduce your Inheritance Tax liability. If you find yourself in charge of administering an estate, you can also seek assistance from a Kent accountant for probate services, who can help with gathering the necessary information for Probate and distributing the estate according to the testator’s wishes.

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