Witnessing a Will is a big responsibility and choosing the right person to take on that responsibility is an important decision to make. As part of the Wills Act, witnesses are necessary to ensure the document becomes official and legally binding. It is very important to understand who can and cannot witness your Will and how the process should take place in order to ensure your Will is watertight and cannot be contested or declared invalid at a later date.
For a Will to be legally valid, it must;
The main purpose of having witnesses is to offer validation that the Will is a true representation of your wishes. Although, it’s important to note that witnesses do not need to read the entire Will to be able to sign it; they simply have to see the Will writer signing it.
Keep in mind that as you need two witnesses to be present at the same time, you may have to carefully plan when the Will signing will take place.
Witnesses will need to write their signature as well as their full name in print lettering, along with their address, and occupation, to ensure easy identification. They must also date the Will.
There are strict rules governing who can and cannot witness a will. The rules are that:
The word used is that all witnesses must be “disinterested” in the Will. In other words, they must not be able to benefit from you Will in any way, or be related to anyone who can.
It’s important to ask someone who is independent to the process and who you are not related to, to witness the will.
A work colleague, friend, neighbour, or a professional such as a solicitor (not one who worked on your Will however), a doctor or a religious leader would make an ideal witness. Witnesses can be related to each other without affecting the Will so asking a friend and his or her spouse can speed up the process.
There is a procedure that must be followed when witnessing a Will:
As a witness to a Will, your responsibility does not stop at just signing the document. You must also be ready and willing to testify in a court of law that the correct procedures and steps were followed during the signing and witnessing of the Will.
You must state that you were in the presence of the testator as they signed their will, and that you can confirm without a shadow of a doubt that the signature appearing on the Will does, in fact, belong to the testator.
Witnesses could be asked if you were in the right state of mind when you signed the Will, or if you were coerced into signing the Will under duress, which is illegal. In some instances, witnesses may be required by the court to sign an affidavit that should state clearly that the Will was signed in the correct and proper manner, and that all of the rules were followed. If they cannot confirm any of this, then the Will can be declared null and void which is why it is very important that the Will is actually signed in the presence of the witnesses and not beforehand or at a later date. Your witnesses should also be able to see each other sign the will.
