The Importance of Witnesses.

For a Will to be valid, it must be correctly signed and witnessed.

The attestation clause is simply the section of the Will where the testator and witnesses sign. By signing their names everyone is attesting to the circumstances of the Will’s execution – namely that everyone was present and witnessed everyone else signing.

That is the Gold Standard – one that we here at Mundays LLP work to. However, the legislation that sets out a Will requirement make clear that an attestation clause is not required. In fact a recent case treated a Will as being valid despite the two witnesses being unable to sign their names due to lack of space on the document.

However, whilst the provisions do offer some flexibility, the failure to subscribe to the highest standard can create unnecessary difficulties for those left dealing with the Estate.

I had a case where a Will was professionally drafted but upon the testator’s death it became clear that only one witness had signed the Will – and as mentioned above, this is not necessarily fatal to the Will’s validity. In this case the consequences of the Will being invalid were dire and it was vital we attempted to establish a second witness had indeed been present – and had simply failed to provide their details on the document.

Disappointingly, despite our best endeavours, when we did make contact with the witness they explained that they had been alone – which meant the Will was invalid.

The Gold Standard I mention above would require the witnesses to give their contact details. This is sometimes queried as the witness may be a complete stranger to the testator – grabbed off the street (I have done this for a death bed Will). The reason their details are needed is because it allows them to be contacted should there be any questions over how the Will was executed.

This was necessary in a recent case of mine when it became obvious that the testator had changed his Will once it had been signed i.e. he had come back to it and added new provisions. Whilst strongly advised against, doing this does not necessarily invalidate the entire Will but it does invalidate these additional provisions.

I needed to work out what was in the Will when it was executed and what was added later. I contacted both witnesses, and remarkably, considering the passage of time, one of the witnesses was able to provide me with a statement confirming what was there when they signed it. This statement was enough to persuade the District Registrar to allow the Will to be proven and a Grant extracted. 

In a recent High Court case the Chief Master was willing to invalidate a Will even though it appeared to have been duly executed.  This was clearly an exceptional situation and the threshold for rebutting (or challenging) a Will’s validity on such grounds remains extremely high (i.e. difficult). This high threshold is offers the protection and reassurance to testators. A final legal nugget is the importance of ensuring the attesting witnesses are not connected to the Estate. They must not be beneficiaries as any gifts to a witness are voided. This is another advantage of using solicitors – by acting as the witnesses we can ensure that the Will is correctly signed without the risk of the witnesses being compromised.

If you remain confused by the described above, then I would suggest contacting Mundays Private Wealth team who will be able to draft a Will to fit your circumstances and advise you further on any particular element you should consider in your Will. If you would like to discuss any concerns you may have with your existing Will or an Estate dispute contact Michael Brierley head of the Trusts, Wills and Probate Disputes team.

The contents of this article are intended as guidance for readers. It can be no substitute for specific advice. Consequently we cannot accept responsibility for this information, errors or matters affected by subsequent changes in the law, or the content of any website referred to in this article. © Mundays LLP.

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