Beneficiary Witnesses and Void Gifts in a Will – new rules needed to include ‘Cohabiting Couples’ Part II

What are the ‘Consequences’ for a ‘Witness’ who subsequently ‘Marries’ a ‘Beneficiary’?

  • The ‘Will’ is still valid and the gift to the ‘Beneficiary’ is also valid.
  • Under the law as it currently stands, the fact that a ‘Witness’, who at the time the ‘Will’ was executed was ‘not married’ subsequently ‘Marries’ a ‘Beneficiary’, does not lead to the operation of the rule in: ‘Section 15 – Thorpe v Bestwick [1881] 6 QBD 311′.

Can a ‘Gift’ to a ‘Beneficiary Witness’ ever be ‘Saved’?

  • Yes. The ‘Gift’ will not be ‘Void’ if the ‘Will’ is formally ‘Witnessed’ by two other ‘Witnesses’, who do not take benefit under the ‘Will’. (‘Section 1 – Wills Act 1837.’) In reality, it may be very unlikely that the ‘Will’ was ‘Formally Witnessed’ by more than two witnesses.
  • Another way the ‘Gift’ can be ‘Saved’ is the ‘Republishing of the Will’ by a subsequent ‘Codicil’ (A ‘Codicil’ is a legal document that allows you to amend an existing ‘Will’. This can be helpful if you want to add new family members or leave gifts to charities, but it is better to compile a new ‘Will’ for larger changes.) confirming the terms of the ‘Will’ – assuming that the ‘Beneficiary Witness’ does not once again act as a ‘Witness’ to the ‘Codicil’ . (Re: Trotter, Trotter v Trotter [1899] 1 Ch 764)
  • There has been no reported ‘Case law’ on the point in question, but presumably the subsequent ‘Divorce’ of a ‘Witness’ from a ‘Beneficiary’ named in a ‘Will’ does not ‘Save’ an otherwise ‘Void Gift’ and the ‘Section 15 rule’ considers the nature of the relationship at the date the ‘Will’ is signed, ‘not at a future date such as the date of death.’ A disappointed ‘Beneficiary’ faced with this unusual set of circumstances might feel it worth arguing the point, especially if the ‘Divorce’ was executed in the lifetime of the ‘Testator’.

What does “But no form of attestation shall be necessary” mean?

The law pertaining to ‘What attestation by a Witness means’ is not clear. The ‘Law Commission’ suggests that it does not require anything more than the ‘Witnesses’ being present and ‘Bearing Witness’ to the ‘Testator’s Signature’ (or his or her acknowledgement of the signature) the ‘Law Commission’ then concludes that the requirement for the ‘Witness’ to “Attest”, (Per – Section 9 – (1) (d) (i) ) ‘Appears Redundant’. It is highly likely that the wording of this subsection is going to be changed in the near future when the ‘Law Commissions work’ on this area is completed and ratified within the legal framework.

The “no form of attestation shall be necessary” wording at the end of Section 9 is no doubt ‘Intended’ to avoid ‘prescribing a set attestation clause wording’ that then creates an ‘Extra Barrier’ for the ‘Creation of a Valid Will’ and perhaps makes it more difficult for ‘Individuals’ to make a ‘Will’.

What is the ‘Presumption of Due Execution’?

If it appears on the ‘Face of the Will’ that the formalities set out in ‘Section 9’ of the ‘1837 Act’ have been complied with, then this allows the ‘Court’ to presume that the ‘Will’ was validly executed and expresses the ‘Testator’s Intentions’. (Perkins [2006] WTLR 425 at [6] by Neuberger LJ).

It is said that “the strongest evidence” is required to negate the presumption of ‘Due Execution’. However, the ‘Presumption Applies’ with greater or lesser force according to the circumstances of each case.

There are exceptions: where it is a ‘Statutory Will’, a ‘Privileged Will’ or where the ‘Formal Validity’ of the ‘Will’ is determined by the law of a ‘Foreign Jurisdiction’ not ‘English law’.

A ‘Strong Presumption’ arises where a ‘Will’ contains a ‘Formal Attestation Clause’. An ‘Attestation Clause’ in a ‘Will’ records compliance with ‘Section 9 of the 1837 Act’ in the ‘Execution Of The Document’; an example would be similar to the one here below:

Example ‘Attestation Clause’

Dated this…………….day of………………2022

Signed by the ‘Testator’ in ‘Our’ presence and then by us in his.

[Signature of ‘Testator’]

[Signature, addresses and descriptions of two ‘Witnesses’]


It appears there are ‘Sound’ policy grounds for the ‘Section 15 Rule’ along with the other rules concerning the ‘Witnesses to a Will’. The ‘Feasible Indications of Change’ appear to lean towards ‘augmenting the remit’ to reflect societal change in that a compelling percentage of the adult population now ‘Cohabits’ without ‘Marrying’. Due to this fact, there is a possibility that a ‘Witness’s Cohabitant’ might benefit from a Will, and thus there is therefore significantly more of a likelihood for this to occur now than in the ‘Nineteenth Century’. It therefore makes sense that the ‘Rules’ on who should be prohibited from acting as a ‘Witness’ are widened to include ‘Cohabitees’.

If you would like any further advice, please do not hesitate to contact us:
3C Legal Limited
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