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  • FIRST POST
    • Panda78
    • By Panda78 31st Mar 14, 11:40 AM
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    Panda78
    Can a non beneficiary relative witness a will?
    • #1
    • 31st Mar 14, 11:40 AM
    Can a non beneficiary relative witness a will? 31st Mar 14 at 11:40 AM
    Morning All,

    I'm completing DIY will forms and wondering if 2 relatives could witness my will, as long as they are not beneficiaries? I've read conflicting views online.

    Also, would my will still be valid if a witness died before i did?

    Thank you.
Page 1
    • RAS
    • By RAS 31st Mar 14, 11:41 AM
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    RAS
    • #2
    • 31st Mar 14, 11:41 AM
    • #2
    • 31st Mar 14, 11:41 AM
    Can we just check whether you are in England, Wales or Scotland? The law can be different.
    The person who has not made a mistake, has made nothing
    • cte1111
    • By cte1111 31st Mar 14, 11:44 AM
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    cte1111
    • #3
    • 31st Mar 14, 11:44 AM
    • #3
    • 31st Mar 14, 11:44 AM
    The will should not be witnessed by a beneficiary or a spouse of a beneficiary. This is my understanding of the law in England.

    https://www.gov.uk/make-will/witnessing-your-will
    • Panda78
    • By Panda78 31st Mar 14, 12:01 PM
    • 296 Posts
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    Panda78
    • #4
    • 31st Mar 14, 12:01 PM
    • #4
    • 31st Mar 14, 12:01 PM
    Can we just check whether you are in England, Wales or Scotland? The law can be different.
    Originally posted by RAS
    England, thank you.
    • Panda78
    • By Panda78 31st Mar 14, 12:03 PM
    • 296 Posts
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    Panda78
    • #5
    • 31st Mar 14, 12:03 PM
    • #5
    • 31st Mar 14, 12:03 PM
    The will should not be witnessed by a beneficiary or a spouse of a beneficiary. This is my understanding of the law in England.

    https://www.gov.uk/make-will/witnessing-your-will
    Originally posted by cte1111
    Thank you, so by reading the link, seems that i can have 2 relatives witness my will as they will not be beneficiaries (or the spouse of)?
    • Icey77
    • By Icey77 31st Mar 14, 2:04 PM
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    Icey77
    • #6
    • 31st Mar 14, 2:04 PM
    • #6
    • 31st Mar 14, 2:04 PM
    As I understand it (having completed my new will last last week) the witnesses must not be beneficiaries or married to beneficiaries, they must also be over 18.

    There are no rules that they have to be relatives though, so you can ask anyone that you trust such as friends, neighbours etc.
    Whether you think you can or you can’t, you’re probably right ~ Henry Ford

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    • getmore4less
    • By getmore4less 31st Mar 14, 3:25 PM
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    getmore4less
    • #7
    • 31st Mar 14, 3:25 PM
    • #7
    • 31st Mar 14, 3:25 PM
    Is it not the other way round,

    anyone(over 18) can sign BUT they lose their rights as a benificiary.

    A benificiary can sign on behalf of the testator.

    Wills act section 15.
    http://www.legislation.gov.uk/ukpga/Will4and1Vict/7/26/section/15

    If any person shall attest the execution of any will to whom or to whose wife or husband any beneficial devise, legacy, estate, interest, gift, or appointment, of or affecting any real or personal estate (other than and except charges and directions for the payment of any debt or debts), shall be thereby given or made, such devise, legacy, estate, interest, gift, or appointment shall, so far only as concerns such person attesting the execution of such will, or the wife or husband of such person, or any person claiming under such person or wife or husband, be utterly null and void, and such person so attesting shall be admitted as a witness to prove the execution of such will, or to prove the validity or invalidity thereof, notwithstanding such devise, legacy, estate, interest, gift, or appointment mentioned in such will

    unless someone find something that superceed this.
    • Mojisola
    • By Mojisola 31st Mar 14, 3:57 PM
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    Mojisola
    • #8
    • 31st Mar 14, 3:57 PM
    • #8
    • 31st Mar 14, 3:57 PM
    As I understand it (having completed my new will last last week) the witnesses must not be beneficiaries or married to beneficiaries, they must also be over 18.
    Originally posted by Icey77
    Is it not the other way round,

    anyone(over 18) can sign BUT they lose their rights as a benificiary.
    Originally posted by getmore4less
    This is right - the will would still be valid if a beneficiary's spouse signed as a witness but the legacy to the spouse would fail.
    • Savvy_Sue
    • By Savvy_Sue 2nd Apr 14, 2:15 AM
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    Savvy_Sue
    • #9
    • 2nd Apr 14, 2:15 AM
    • #9
    • 2nd Apr 14, 2:15 AM
    Also, would my will still be valid if a witness died before i did?
    Originally posted by Panda78
    Yes. Imagine the difficulty if wills were invalidated by the death of a witness, given that no-one can predict when anyone will die.
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  • madbadrob
    In England & Wales, you need two witnesses over the age of 18 to witness your signature and to sign your will; in Scotland, you need only one witness over the age of 16. The spouse of a testator (person making a will) cannot witness a will, nor can beneficiaries of the will (or their spouses). Taken from http://www.lawpack.co.uk/wills/item1797.asp

    can an executor also be a beneficiary
    The answer is yes, provided the Will contains the appropriate wording. However executors, beneficiaries, or the spouses of executors, beneficiaries, MUST not witness Wills as gifts to witnesses or their spouses will not be allowed to stand, Save for exceptional cases.

    Taken from http://www.wisewills.co.uk/faq.htm and concur's with getmores post

    Which is again contradicted by

    8. Who can witness my Will?

    Any independent person may witness your Will. Independent means that they must not be related to the maker of the Will or be a beneficiary under the Will. It does not have to be a solicitor; it can be a neighbour or friend.
    taken from http://www.simpsonmillar.co.uk/services/willsandprobate/wills-frequently-asked-questions.aspx#witness

    I suspect that these law firms are saying this as they would expect the spouse and relatives to be beneficiaries which witnesses cannot be.

    legalcenter.co.uk say in answer to who can witness my will
    He or she must not be a beneficiary under the Will or the husband, wife or civil partner of a beneficiary or that beneficiary will lose his/her entitlement.

    I can see why the OP is confused and mentions conflicting information. Having read a large number of sites now on this subject I would have to concur with getmore4less when he posted the statutory instrument on this and say yes anyone over 18 in England and Wales can witness a will but they cannot benefit from the will.

    Rob
    • Panda78
    • By Panda78 2nd Apr 14, 2:41 PM
    • 296 Posts
    • 334 Thanks
    Panda78
    In England & Wales, you need two witnesses over the age of 18 to witness your signature and to sign your will; in Scotland, you need only one witness over the age of 16. The spouse of a testator (person making a will) cannot witness a will, nor can beneficiaries of the will (or their spouses). Taken from http://www.lawpack.co.uk/wills/item1797.asp

    can an executor also be a beneficiary
    The answer is yes, provided the Will contains the appropriate wording. However executors, beneficiaries, or the spouses of executors, beneficiaries, MUST not witness Wills as gifts to witnesses or their spouses will not be allowed to stand, Save for exceptional cases.

    Taken from http://www.wisewills.co.uk/faq.htm and concur's with getmores post

    Which is again contradicted by

    8. Who can witness my Will?

    Any independent person may witness your Will. Independent means that they must not be related to the maker of the Will or be a beneficiary under the Will. It does not have to be a solicitor; it can be a neighbour or friend.
    taken from http://www.simpsonmillar.co.uk/services/willsandprobate/wills-frequently-asked-questions.aspx#witness

    I suspect that these law firms are saying this as they would expect the spouse and relatives to be beneficiaries which witnesses cannot be.

    legalcenter.co.uk say in answer to who can witness my will
    He or she must not be a beneficiary under the Will or the husband, wife or civil partner of a beneficiary or that beneficiary will lose his/her entitlement.

    I can see why the OP is confused and mentions conflicting information. Having read a large number of sites now on this subject I would have to concur with getmore4less when he posted the statutory instrument on this and say yes anyone over 18 in England and Wales can witness a will but they cannot benefit from the will.

    Rob
    Originally posted by madbadrob
    Thanks Rob, OP here, i've continued to research this online and there are still conflicting reports, mostly on how you interpret "independent witness", but most of the obvious places to check - govt websites, CAB etc, seem to say anyone over 18 can witness, as long as they are not a beneficiary.
    • Mojisola
    • By Mojisola 2nd Apr 14, 2:50 PM
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    Mojisola
    Thanks Rob, OP here, i've continued to research this online and there are still conflicting reports, mostly on how you interpret "independent witness", but most of the obvious places to check - govt websites, CAB etc, seem to say anyone over 18 can witness, as long as they are not a beneficiary.
    Originally posted by Panda78
    Or blind - because they have to be able to see the the testator writing their signature.

    A will would still be valid if a beneficiary was one of the witnesses but he/she would not be given their inheritance.
    • whitewing
    • By whitewing 2nd Apr 14, 2:55 PM
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    whitewing
    From what I read, if a beneficiary did witness the will properly, the will would still be valid but the beneficiary wouldn't be able to receive their inheritance.

    It also seems that the witnesses may be contacted at a later date to confirm details of how the will was signed, if there is a query. So I was going to suggest that you simply get non-relatives to sign; however, maybe relatives are more sensible as you may be more likely to keep in touch in the long term.
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  • madbadrob
    Or blind - because they have to be able to see the the testator writing their signature.

    A will would still be valid if a beneficiary was one of the witnesses but he/she would not be given their inheritance.
    Originally posted by Mojisola

    You know I had not even considered a blind person and you are correct of course.

    Yes that is true but would then cause a partial intestacy or even a total intestacy if the wife was witness and sole beneficiary which then puts pressures on the executors to locate the correct beneficiary. That would then bring up another argument. If the sole beneficiary was the spouse and a witness as well then the spouse would get the lot anyway because of the intestacy subject of course to the rules where value is in excess of £250k

    Rob
    • cte1111
    • By cte1111 2nd Apr 14, 10:50 PM
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    cte1111
    The probate office definitely do sometimes contact witnesses. It happened for my Granny's will - she made a small change with a codicil, which was witnessed correctly by my Dad's next door neighbours. When the will went to probate, one of the witnesses was asked to go to the probate office and confirm that he had signed it.

    We were just glad that it was my parents' neighbours that had been the witnesses, as one still lived there 20 years later and was happy to go and do the necessary paperwork. If it had been one of my Granny's own neighbours, who lived 200 miles away and we wouldn't necessarily know how to get hold of, then it could have been tricky.

    Not sure if this was just because it was a codicil, but I would always get a will re-written from scratch myself, just in case of problems like this.
    • getmore4less
    • By getmore4less 3rd Apr 14, 6:03 AM
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    getmore4less
    You know I had not even considered a blind person and you are correct of course.

    Yes that is true but would then cause a partial intestacy or even a total intestacy if the wife was witness and sole beneficiary which then puts pressures on the executors to locate the correct beneficiary. That would then bring up another argument. If the sole beneficiary was the spouse and a witness as well then the spouse would get the lot anyway because of the intestacy subject of course to the rules where value is in excess of £250k

    Rob
    Originally posted by madbadrob
    IS that really the case?

    The will does not fail, just that the rules for distribution are prescribed by the rules of intestacy.

    I think the wife above would still be an excluded beneficiary and potentially her issue etc. if she had died.

    So anything to back this up one way or the other...

    research starts
    • getmore4less
    • By getmore4less 3rd Apr 14, 6:18 AM
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    getmore4less
    http://lawcommission.justice.gov.uk/docs/cp172_Forfeiture_Consultation.pdf

    an interesting read but don't think it addresses the particular case it does discuss it partial in section 3.4
  • madbadrob
    IS that really the case?

    The will does not fail, just that the rules for distribution are prescribed by the rules of intestacy.

    I think the wife above would still be an excluded beneficiary and potentially her issue etc. if she had died.

    So anything to back this up one way or the other...

    research starts
    Originally posted by getmore4less
    If there was one beneficiary and that one person was the spouse of the deceased and she had witnessed the will then yes it would fail. The estate would then become what is known as Intestate with will. As the will would then follow the rules of intestacy the spouse should be first in line.

    I did try to find a case like this but failed miserably but I would like a definitive answer myself. I suspect that as until fairly recently most if not all wills were written by solicitors that this may not have occurred.

    Rob
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