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If you’re planning on making a will, for it to be legally binding your signature must be witnessed by two independent people. But who should be the witness be and what is the process? The team at Swansea Legal Solutions explains who you should choose and what is involved.
Role of a Witness
The witness’s role is to confirm that the person making the will (the testator) is actually the same person who signs the document. A will is not valid unless it is signed by the testator and the two witnesses. The testator must either sign the document in the presence of two witnesses and each witness must then sign the will themselves. They also need to provide their name, address, and occupation but they don’t need to read the will or know what is in it.
The reason you will need a witness when writing your will is because they can confirm that the testator is the person who wrote and signed the will and that the signature isn’t forged or that the testator hasn’t been coerced into signing the document. The witnesses must also have the mental capacity to understand that they are signing the will.
It’s important to have two independent witnesses who have no stake in the will to maintain impartiality. That’s why people who are to inherit from your will cannot be witnesses. If you don’t have two independent witnesses, then the will be deemed invalid on the grounds of ‘lack of due execution’ – which means the correct legal procedure has not been followed.
Process of Witnessing a Will
The process of witnessing a will is quite straightforward. The testator and the two witnesses need to sign and date the will and watch each other sign it. The witnesses should also provide their full name, address and occupation written clearly.
A witness doesn’t have any ongoing legal responsibilities once they’ve signed the will. The only time they might be called upon again is if there is a challenge to the validity of the will after the testator has passed away. If someone claims that the signature is forged, or that the testator was either pressured into signing or didn’t have the mental capacity to sign, the witness’ testimony could be very important. They may be asked to sign an affidavit to confirm the circumstances in which the will was signed.
Choosing your Witnesses
Witnesses must be an independent adult who isn’t related to you (the testator) and has no personal interest in the will. A neighbour or family friend is ideal. Witnesses cannot be a spouse or civil partner of the testator, a beneficiary of the will or the spouse or civil partner of a beneficiary.
From the witnesses’ perspective, they should not agree to this role or to sign a will if the person signing the will is not the testator; if they don’t believe the testator has mental capacity or if you think the testator is being coerced into signing the will.
As mentioned previously, if you know that you are a beneficiary under the will or you’re the spouse or civil partner of a beneficiary again you cannot sign the will. However, if you are an executor of the will, as long as you are not a beneficiary too, then you can witness the will.
Swansea Legal Solutions
If you’re planning on making a will and you’re not sure who to appoint as witnesses, then contact the team at Swansea Legal Solutions on 01792 420844. We can help to draw up your will, witness the document and also advise on whether you need additional support in place such as a property trust.
