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.
Anyone 18 years and over can witness or sign a will, but importantly, a beneficiary can’t witness a will, and neither can their spouse or civil partner. In many cases, people will ask a friend or work colleague to sign and witness the will. Traditionally, the law required witnesses to be physically present when witnessing the will, but as we’ll explain later, new legislation has made it possible to witness a will virtually until 31st January 2022.
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.
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, and be aware of what the document entails. It’s also inadvisable to let any family member sign the will, even if they’re not a named beneficiary at the time of writing the document, in case they have a legitimate claim to be a residuary beneficiary in the future. Your witness should also have the mental capacity to understand the will.
Witnessing a will isn’t simply a legal obligation. It means that should the will ever be called into question after you die, you will have at least one credible witness who can testify that the will was signed and witnessed properly.
If a witness to your will dies before you, the will remains valid, but complications could arise. For example, when your executors apply for probate, they may need to provide proof that the witness has died, and that their signatures were valid. To be safe, if a witness dies you may wish to write a new will or have it witnessed again by someone else.
In response to the Covid-19 pandemic, the Wills Act 1837 was amended so that witnessing a will using video-conferencing technology has become lawful. The UK government advises that people should continue to use physical witnesses where possible, but for those shielding or self-isolating due to the pandemic, witnessing a will virtually is now admissible. The legislation applies retrospectively to any wills made since January 1st 2020, and is designed to be in force for two years subsequent to this date, but may be extended or shortened depending on the public health guidelines. The law also applies to codicils, which follow the same criteria as when writing a will, such as having two independent witnesses.
How to witness a will virtually
While the context for introducing virtual wills is understandable, 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.