In order to be valid, a Will must comply with all the requirements of Section 9 of the Wills Act 1837. One of those requirements is that the Will must be signed by the Testator (person making the Will) in the presence of two witnesses at the same time. If the Will is not correctly witnessed the Will is likely to be invalid.
Witnesses
A witness is a person who signs the Will to confirm that they have witnessed the signature of the Testator. The witnesses’ signature is their confirmation that they have actually observed the Testator while he or she has signed his or her Will. Both witnesses must be present at the same time and they may not leave before the Testator has completed signing his or her signature on the Will. The witnesses must not be potential beneficiaries of the Will, spouses of beneficiaries or members of the Testator’s own family.
A blind person is not normally capable of witnessing a Will and the witness must be over the age of 18 and of sane mind. This is because a witness may be called upon at a later date to provide a sworn statement (affidavit) to provide his or her evidence of circumstances of signing the Will and if there are any problems with the signatures on the Will; there may be doubts as to the mental capacity of the Testator at the time the Will was executed or that the Testator may have been subject to undue influence.
Signing the Will
The witnesses are able to sign their names on any part of the Will, although it is normal for the Will to be signed at the end the Will, under the signature of the Testator. The witnesses are required to also their details to the Will.
Attestation of the Will
It is also important that the Will contains a correct attestation clause confirming that the requirements have been complied with. Although this is good practice it does not necessarily invalidate the Will.
Where a proper attestation has been used, the law will presume that the will has been properly attested. In the absence of an attestation clause it may be necessary for one or both of the witnesses to provide an Affidavit of Due Execution, confirming the circumstances surrounding the witnessing of the Will. This would become difficult if one or both of the witnesses die before the Testator or lose mental capacity.
If you are require further information or are unsure whether your Will has been validly witnessed and therefore there could be some doubt as to the validity of your Will, please do not hesitate to contact one of our Wills specialists, who will be able to offer further advice and guidance.