08 Feb 2024

Who can witness and sign a will?

Witnessing a will might sound straightforward, but in order for it to be legally binding, you’ll need to follow the correct procedures. So to give you peace of mind, we’ve put together a guide to explain who can sign and witness a will.

Witnessing and signing a will

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In order for the will to be valid, your witness must be:

  • Aged 18 and over (or 16 in Scotland)
  • Someone with ‘capacity’, meaning they must have the ability to understand what they are signing.
  • Not related to the person making the the will (the testator) or have any personal interest in the will. Ideally this could be a family friend or neighbour.

There are some differences regarding who can witness a will across the UK. For example, in England and Wales, you will need two independent witnesses, whereas the law in Scotland simply requires one witness or more.

Illustration of who can witness and sign a will

The witness to the will should be an independent person, which excludes married partners. If the beneficiary or testator's spouse or civil partner witnesses the will, this does not invalidate the will, but the beneficiary forfeits the right to their share of the estate.

Yes, a testator can instruct someone else, such as a solicitor, to sign a will on their behalf. Once the document is signed, the will itself does not need to be approved or registered by a solicitor.

You might be able to store your will in a solicitor's office if you'd rather not keep it at home.

Yes, a stranger can be a witness to a will, but this is normally inadvisable. This is because the witness could in theory be called upon to testify that the will was executed correctly. Ideally, the witness should be easy to locate and a reliable person.

If a witness or witnesses to a will pass away, the will remains valid. However, it's possible that during the probate process, the executor would be required to submit proof that the signature is valid. For this reason, if a witness had died, some people choose to write a new will or amend their existing one, known as a codicil.

If a will isn't properly witnessed, it could be declared invalid by a court. This would mean that an earlier will would be considered the valid document, or if there is no previous will, the rules of intestacy would apply.

In theory, anyone can contest a will, and a court would ultimately rule whether there was valid grounds for challenging the will.

Aside from beneficiaries and their spouse or civil partner, you can’t witness a will if you’re blind or partially sighted. This is because the witness needs to physically see the act of putting pen to paper.

Witnessing a will isn’t simply a legal obligation. For a will to be valid it must be signed by the testator and their signature must be made or acknowledged in the presence of two witnesses. The witness must be present at the same time and must also attest and sign the will. 

In Scotland, a will needs to be signed by the granter (the individual creating the will) at the bottom of each page. The granters signature should also be witnessed by one independent adult witness. Which in this case means anyone over the age of 16 can witness a signature.

Virtual will witnessing

Virtual witnesses to a will have been accepted in the UK since the Covid-19 pandemic, when the Wills Act 1837 was amended so that witnessing a will using video-conferencing technology became lawful. However, it was only  possible to witness a will virtually until 31st January 2024, as the Law Commission have concluded that the new arrangements will need to be made so that electronic wills can meet the same formal standards as paper wills.

As it stands, the law on witnessing a will virtually also applies to codicils, which follow the same criteria as when writing a will, such as having two independent witnesses.

Senior couple using video conferencing

How to witness a will virtually

How exactly do you witness a will when you’re not in the room? Here is a summary of the official UK guidance.

  • The will must be signed in real-time – Pre-recorded videos are not permissible, so the witnesses will need to watch the document being signed through a live-action video link.
  • The witnesses must have a ‘clear line of sight’ – While there are no instructions on which video-conferencing platform to use, the witnesses must have a clear view of the signature being written, and of the document itself.
  • The will maker must be visible – The witnesses must, by law, see the will maker as they sign the will. If the witness has never met the will maker, they should verify their identity by asking to see a passport of driving license picture.
  • The will maker should express their intentions – In order to prove they have ‘testamentary capacity’, the will maker should address the camera before the will is signed. The following wording is suggested: ‘I (first name, surname), wish to make a will of my own free will and sign it here before these witnesses, who are witnessing me doing this remotely’.

  • The video should be recorded – Ideally, the video should be recorded and retained so that it can be used as evidence in court if the will is ever challenged.

E-signatures are not permitted under the new legislation, so after the first video is made, the will must be taken to the witnesses – ideally within 24 hours – and they should sign the document with a ‘wet signature’, in the virtual presence of the will maker. According to the official guidance, it is preferred, but not essential, that the two witnesses are physically in the same room.

Learn more about how to write a will

Ultimately, writing a will and getting it signed and witnessed correctly means peace of mind for you and your loved ones. For further information, read more about how to write a will and explore our expert articles and guides.

 

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