witnesses to wills and POA

sanfly

We are currently thinking of re-doing our wills and writing POA's and have the following questions relating to witnesses.

1) When selecting witnesses for wills and POA does the witness have to be living at activation, or would you need to redo the documents if a witness should pass away before activation.

2) On a POA an attorney cannot be a witness, but could a family member who is not an attorney such as a son or mother-in-law be a witness to the document?

localhero

Hi Sanfly,

1) No the will does not have to be rewritten if a witness predecease you.

2) yes. The attorney cannot be a witness to the donor, and vice versa. The witness should be an adult and I recommend the witness is not a spouse.

sanfly

thanks localhero, so i guess the mother in law can witness between me and my husband and vica versa............

localhero

Yes. The important thing with the will witnesses is that they should not be named as a beneficiary of the will nor must they be a spouse of a beneficiary. They shouldn't be a guardian, executor/trustee either.

LittleVoice

localhero wrote: »

Yes. The important thing with the will witnesses is that they should not be named as a beneficiary of the will nor must they be a spouse of a beneficiary. They shouldn't be a guardian, executor/trustee either.

Are you sure that an executor cannot be a witness (as long as they are not a beneficiary of course)?

localhero

They can, but it's inadvisable.

sanfly

localhero wrote: »

Hi Sanfly,

2) yes. The attorney cannot be a witness to the donor, and vice versa. The witness should be an adult and I recommend the witness is not a spouse.

Re the above my mother in law is currently doing an EPA and her solicitors have told her that a family member cannot be a witness, even if not named as a attorney............is this correct??

she has witnessed our epa's, so what is correct?

Biggles

sanfly wrote: »

Re the above my mother in law is currently doing an EPA and her solicitors have told her that a family member cannot be a witness, even if not named as a attorney............is this correct??

No, that's incorrect. I hope you're not paying the solicitor to advise you on the EPA (very expensive for such a (normally) simple document, especially if he's making up his own rules!).

From the notes to the form (down the L/H side of the official form):
Part B (donor): 'Someone must witness your signature...... Your attorney(s) cannot be your witness'
Part C (witness): 'The donor may not be the witness and one attorney may not witness the signature of another'

He may think it's 'advisable' for the witness not to be a family member but it's certainly not a requirement and the form is valid as it stands.