2010 - 2017
Making a Will is not about wealth it is about making sure that what you want to happen to your estate does happen. It gives you the opportunity to specify such things as who will administer your estate, who will care for your children and who will receive specific items of your property.
Anyone may be a witness unless he is blind. There is no minimum age requirement but obviously common sense must be applied. The witnesses may be called to give evidence after your death and should therefore be of a suitable age and competent to give evidence.
Although the law does not require a witness to be over 18 it is probably preferable for this to be so. For practical reasons it may be best to seek out witnesses somewhat younger than you.
The point of having witnesses is so that they can speak after your death if queries arise.
A beneficiary should not witness the will since a witness cannot benefit from a will he has witnessed.
Note that if a beneficiary witnesses the will or is married to a witness, the gift to him is void. The will is still valid but the witnessing beneficiary does not receive his gift. It does not matter if a witness later marries a beneficiary; it is the situation at the date of the will that matters.
An executor may witness the will but should not do so if you are leaving him a legacy for his trouble. He will not appreciate doing all the work and then being denied his gift for the reasons given above.
On the basis that it is better to be safe than sorry, choose as your witnesses people who are not mentioned in the will at all.
There is no objection to a married couple acting as witnesses as long as neither receives a. gift in the will.
It may be wondered how anyone would ever know if the strict formalities for execution of the will were not adhered to but these things have a way of coming to light. I dealt with a case two years ago where the testatrix had obviously started to write 'May' in the will and changed it to 'June'.
Given that the will was dated the third of the month this seemed understandable enough, the testatrix having possibly momentarily forgotten that the month had changed. The Probate Registry asked for an affidavit of due execution to be sworn by the witnesses so as to be sure the formalities had been complied with. The witnesses were duly approached and asked if they would swear a document stating they had been present and seen the testatrix sign her will.
Both of them telephoned me and were most helpful and willing to co-operate. Unfortunately, they both told me that they had never met each other. It transpired that the testatrix had asked one witness to witness her signature and asked the other on a later date.
The will was thus invalid.
There have been numerous cases where the attestation of the will has been brought into question. Many of these involve the position of the testator and witnesses within the room and whether such behaviour as the testator or witnesses peeping through doorways and windows to see each other sign amounts to due execution. Why a testator should approach the signing of such an important document in such a bizarre way is a matter for conjecture.
It is certainly not recommended that such a cavalier approach be adopted.
Caution is advised if you decide to sign your will at a family reunion or some such event. If you must do this, try to avoid picking two witnesses who live at opposite ends of the country.
There are dicta to the effect that this arouses a suspicion that the two witnesses were not present at the same time (`dicta' being comments made by a judge in the course of delivering his judgment). The result is that the Probate Registry may ask for an affidavit of due execution when the will is sent to them. Certainly a solicitor receiving such a document back from a testator is expected to make enquiry of his client as to whether the witnesses were present together with the testator when they signed.
In fact the recommended procedure for solicitors is that they require their clients to attend the office to execute their wills. I can testify from experience that this saves a lot of time and trouble.