Incorrectly Witnessed Wills - Grounds For Dispute

One of the grounds for contesting someone's will is that it was not witnessed legally, therefore rendering the execution of the document invalid and providing you with good reason to challenge it.  But what are the criteria that govern the legal witnessing a will? Read on to find out more.

What defines a 'witness'?

As far as the law is concerned, a 'witness' is defined as someone who

  • observes a particular event; for example, the signing of a will
  • is willing to confirm that the event actually happened

What does the law say about witnessing a will?

In order for a will to be legal, there must be two witnesses to its signing.  These two parties must be prepared to have their personal details included in the will as a means of proving that it exists. 

Although the witnesses' personal information is cited in the will, they are not duty bound to carry out any specific actions other than to act as witnesses for the testator (the person who has written the will).  Their information must be present in the will in order to have the document declared valid by the Probate Court.  As long as the will is valid, the Probate Court will be able to administer the deceased's estate as per their instructions in the will.

Who can be a witness to a will?

In order to act as a witness to a will the person must be

  • over 18 years of age
  • fully sighted (blind people are not usually considered capable of witnessing a will)
  • of 'sound mind' (people with mental health issues cannot usually act as witnesses)

A solicitor appointed to assist the testator in drafting the will can act as one of the witnesses.  Someone who has been named as an executor on the will can also act as a witness.

It should be noted that anyone who is able to benefit from the proceeds of the will cannot be a witness.  However, if a beneficiary is also named in the will as witness, the remainder of the will is still valid, even though the witness' claim will be void.  For this reason, the following people should not act as witnesses to someone's will:

  • creditors
  • civil partners or spouses
  • children

In conclusion

If you think that a will has not been witnessed legally, you could have grounds to challenge its validity.  For more detailed advice on how to proceed, consult an experienced solicitor.