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

With various rules governing ‘who can witness a Will’, it is important that ‘Wills’, ‘Trusts’ and ‘Probate’ lawyers and ‘Will’ writers know how the ‘Witness’ is connected to the ‘Testator’ and other ‘Beneficiaries’; primarily to avoid ‘Gifts’ becoming ‘Void’ and ‘Wills’ challenged. Very little has changed for a considerable amount of time in terms of signing and attesting Wills, with the exception, of course, of “Video Witnessing” due mainly to the results of the ‘Covid 19 Pandemic’.

The ‘Law Commission’ is however looking at the area of ‘Beneficiary Witness Law’; it has already made various suggestions, including that, a ‘Gift’ to the ‘Cohabitee’ of a ‘Witness’ should be ‘Void’ (as it already is for a Spouse or Civil Partner of a ‘Witness’).

For those professionals involved in ‘Writing Wills’ and likely to be involved in the ‘Witnessing’ of them, should, if they are in any doubt, follow the best course of action and thus provide ‘Two’ completely ‘Independent Witnesses’.

For those ‘Administering Estates’, it is crucial when checking any connection of the ‘Witnesses’ to the ‘Deceased’ and also any ‘Beneficiaries’. It is also advisable to be aware of the possibility that ‘Section – 15’ of the ‘Administration of Estates Act 1925’  ‘Rule’ might have inadvertently been engaged, this should not be overlooked.

Nothing has yet to be set in stone, but forthcoming changes are potentially on their way, to bring the rules ‘up to date’ with modern living arrangements, whereby many couples choose not to marry and there is little ‘rationale’ for treating ‘Cohabitants of Witnesses’ differently from ‘Spouses’ or ‘Civil Partners’. A very different environment to the ‘Nineteenth Century’ indeed!

Here is a brief refresher on how the law currently stands on ‘Signing’ and the ‘Attestation of Wills’:

‘Section – 9’ of the ‘Wills Act 1837′ makes arrangements for the ‘Formalities’ when creating a ‘Will’.

No ‘Will’ shall be valid unless:

  1. It is in writing, word processed or handwritten (Handwritten Wills are known as ‘Holograph Wills’. From a legal perspective, a ‘Holograph Will’ must be executed in accordance with The ‘Wills Act 1837’) and signed by the testator, or by some other person in his presence and by his direction; and
  2. It appears that the ‘Testator’ intended by his signature to give effect to the Will; and
  3. The signature is made or acknowledged by the ‘Testator’ in the presence of two or more witnesses present at the same time; and
  4. Each ‘Witness’ either ‘Attests’ and ‘Signs the Will’, or ‘Acknowledges her/his Signature’, in the presence of the ‘Testator’ (but not necessarily in the presence of any other Witness), but no form of ‘Attestation’ is necessary.

For the purposes and clarification of points 3 and 4, in relation to Wills made on or after 31 January 2020 and on or before 31 January 2022, “presence” includes presence by means of ‘Videoconference’ or other ‘Visual Transmission’. (E.g. ‘Teams’, ‘Zoom’, ‘Skype’ – this is not an exhaustive list)

Here is a brief refresher of the rules for ‘Witnesses to a Will’:

  • A blind person cannot be a witness (In the Estate of Gibson [1949] 2 All ER 90)
  • A person who is not ‘Mentally Competent’ to give evidence can be a ‘Witness’, but because of the difficulty of obtaining reliable evidence        they should be avoided. (Section Wills Act 1837)
    • A child can be a Witness, but again should be avoided unless they are of sufficient age to be able to give ‘Credible Evidence’ of the ‘Will Signing’ and ‘Witnessing’. (Wilson v Beddard (1841) 59 ER 1041 – 14 year-old child)
  • A person that might ‘Inherit’ on ‘Intestacy’ all or part of the ‘Estate’ can be a witness (subject to the further points below) but it is not           advisable – if the ‘Validity’ of the ‘Will’ is challenged at a later date,   they would have a ‘Conflict’ because they stand to gain from the   failure of the Will.
  • A ‘Beneficiary Witness’ – a person involved in witnessing the ‘Will’ but also named as a beneficiary in the ‘Will’– can be a witness. This           is not advised however, as to do so means the ‘Will’ is still valid and             if a ‘Beneficiary’ acts as a witness to the Will, then crucially important       here, is that the gift to that ‘Witness’ becomes ‘Void’. This rule        applies to any ‘Spouse’ or ‘Civil Partner’ of a ‘Beneficiary’ acting as a           witness. (Section 15 ‘Wills Act 1837’)
  • ‘Witnesses’ have to sign or acknowledge their signature in the presence of the ‘Testator’ but do not have to do so in the presence          of the other ‘Witness’. ‘Witnesses’ do not need to have any specific knowledge of what the document is. Interestingly they also do not
    have to know that the document they are signing is a ‘Will’. (Re:   Benjamin’s Estate (1934) 150 LT 417)
  • If the ‘Testator’ acknowledges his signature rather than signing in the presence of the ‘Witnesses’, the ‘Witnesses’ do not need to know       that acknowledgement is a formal requirement of valid execution.     (Kayll v Rawlinson [2010] EWHC 1269 (Ch)

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