Questions about witnesses

Manxman_in_exile

Reading the thread about being "Ripped off by my father's will" a couple of hypothetical questions came to me (just ignore if you don't want to waste time on a hypothetical question, but I would like to know the answers):


1. What should a witness do if it appears to them that the testator is having undue pressure exerted on them (or some other form of coercion) to sign the will? Should they simply refuse to witness the signature? Should it be reported to anyone (ie is it attempted fraud)?


2. Is their a requirement for the witness to know and be able to identify the testator? I know if I were asked to witness a signature on any document, I would not do so unless the person signing was personally known to me. What is the position concerning witnessing a will?

pphillips

Undue pressure will usually amount to financial abuse, this is a crime and the witness should notify the police if they suspect any form of domestic abuse.

There is no requirement for the witness to identify the testator, the witness only needs to know that they are witnessing a will (but do not need to know the contents).

Savvy_Sue

1. financial abuse can also be reported to Action on Elder Abuse (assuming it is wrt an older person)

2. since it is common practice for solicitors to get other staff to witness wills, clearly they don't need to know or be able to identify the testator. I mean, they MAY know that the client is Mrs X, but it is the solicitor who has to know the client, and introductions for the purposes of signing a will are at best cursory ... at least in my experience.

Manxman_in_exile

pphillips wrote: »

There is no requirement for the witness to identify the testator, the witness only needs to know that they are witnessing a will (but do not need to know the contents).

I know they don't need to be aware of the contents, but as it is the will of "Joe Smith" (or whomever) that they are witnessing, you are saying that they don't need to know "Joe Smith"? Then surely all they can witness is that a will was signed, and they don't need to know who is signing it? It could be anybody!

Manxman_in_exile

Savvy_Sue wrote: »

2. since it is common practice for solicitors to get other staff to witness wills, clearly they don't need to know or be able to identify the testator. I mean, they MAY know that the client is Mrs X, but it is the solicitor who has to know the client, and introductions for the purposes of signing a will are at best cursory ... at least in my experience.

Quite - that is our experience of our wills being witnessed at our solicitor's office.


I suppose what I'm getting at is the following scenario:


"So, Miss X, you witnessed the will of Mr Y?"


"That is correct."


"How did you know it was Mr Y whom you witnessed signing?"


"Errr...my employer identified them...I didn't know Mr Y..."

Tom99

Seems a strange omission that the witness does not have to declare they know the person, unlike a POA.

Keep_pedalling

Tom99 wrote: »

Seems a strange omission that the witness does not have to declare they know the person, unlike a POA.

It is only the certificate provider who needs to know you, someone who simply acts as a witness can be a stranger.

DigForVictory

Manxman, for 1 I'd say report it as elder abuse & get the police in. It won't make you any friends and it may not do much for the older person but it isn't a worry I'd want on my conscience. I'll be old one day & I don't want to hustled.

As for 2, we really do not take witnessing that seriously - marriages can witnessed by complete strangers & with Wills it's a requirement they do not benefit so it increases the odds of near untraceable witnesses witnessing - although while some may give their names as Mike Mouse, they is still an address required, at which point the imagination can pack in or be blatantly fraudulent.

Some time ago my godmother got her will witnessed at a polling station, and asked the witnesses for their cards as a souvenir. I'm a bit unsure as to the legality of holding that sort of data but it often ends up in a bin - in her case, it is held alongside her Will so anyone wanting to query the witnesses has names & addresses & a date & if there is a determined fuss, the polling staff could be found.

I note the coop is admirably clear about the point of witnesses

However, the purpose of having two witnesses is to prove, if required, the circumstances around the actual execution of it. This creates the need to have adequate witnesses who, if required, could give credible evidence – for example witnesses who are adult, competent and independent.

So in that thread's case it might not hurt to find the two & try to demonstrate that perhaps they fall short. Still, long, expensive, & effortful. A letter suggesting it might be a way to get sibling reconsidering a little but ultimately this looks like a mess doomed to divide the family.

Manxman_in_exile

Tom99 wrote: »

Seems a strange omission that the witness does not have to declare they know the person, unlike a POA.

Yes. I suppose my point is that I don't understand how anyone can witness the execution of a will without actually knowing who the person is signing it.

DigForVictory

We Very Rarely need to prove the witnesses saw what they thought of the people they thought. Weddings tend to be witnessed by the guests all of whom know at least one party & the registrars are pretty tight on the details.

Wills are taken much more lightly. (Which is a bit hair raising when you think about it.) Hence the outrage when things don't go to plan.

Manxman_in_exile

DigForVictory wrote: »

Manxman, for 1 I'd say report it as elder abuse & get the police in. It won't make you any friends and it may not do much for the older person but it isn't a worry I'd want on my conscience. I'll be old one day & I don't want to hustled.

As for 2, we really do not take witnessing that seriously - marriages can witnessed by complete strangers & with Wills it's a requirement they do not benefit so it increases the odds of near untraceable witnesses witnessing - although while some may give their names as Mike Mouse, they is still an address required, at which point the imagination can pack in or be blatantly fraudulent.

Some time ago my godmother got her will witnessed at a polling station, and asked the witnesses for their cards as a souvenir. I'm a bit unsure as to the legality of holding that sort of data but it often ends up in a bin - in her case, it is held alongside her Will so anyone wanting to query the witnesses has names & addresses & a date & if there is a determined fuss, the polling staff could be found.

I note the coop is admirably clear about the point of witnesses


So in that thread's case it might not hurt to find the two & try to demonstrate that perhaps they fall short. Still, long, expensive, & effortful. A letter suggesting it might be a way to get sibling reconsidering a little but ultimately this looks like a mess doomed to divide the family.

Agreed - we don't take the witnessing of legal documents seriously. It's one of the reasons I decided not to practise law or work in company services management in a certain jurisdiction .


Regarding the point about addresses of witnesses, I'm not concerned about being able to identify who the witnesses were in the event of a subsequent dispute about the a will, rather I don't understand how a witness could swear to witnessing the "execution of X's will" if they don't know who X is.


I presume they only legally need to witness the signing of a document by "somebody" and don't need to know who that "somebody" is? (EDIT: Seems weird to me.)


And of course, witnesses can benefit in many ways other than directly from the will.


EDIT: Sorry - cross posted with you!