Who can be the witnesses?
A witness to a Will should be:
an adult (i.e. at least 18 years of age); and
entirely independent of the person making the Will; and
Not be any person named in the Will.
The witnesses do not have to be independent of 'each other' but they should be independent of you as the person signing the Will. So, for example, you can ask a husband/ wife/ civil partner each to be witnesses of your own Will document however, you would and must not ask for instance your own husband/ wife/ civil partner to witness your own Will, particularly where they are named in your Will as a beneficiary. By doing so, they will forgo any interest in your Will and estate and will not benefit on your death even where you intended them to do so.
It is important that neither of the people witnessing your signature of your Will, nor their spouse or civil partner, receive any sort of benefit under your Will.
However, if your witnesses are professional Trustees or Executors, and are charging for their services, then this restriction does not apply to their professional charges. This is an important distinction to make.
The witnesses must also understand what it is they are witnessing. This means that they need to understand that they are witnessing your signature on a document. It doesn’t mean that they need to know the contents of the Will.
If at a later date the signing of your Will is called into question, the witnesses may be asked about it, and will need to be capable of giving evidence in relation to it. For this reason, you may consider asking people other than close family members to be witnesses. And you’ll need to be sure that those you do ask have sufficient mental capacity to understand what they are doing.
A blind person cannot be a witness to a Will.
How many can witness?
You must sign your Will in the presence of at least two witnesses, both of whom are present to witness it at the same time.
Witnesses and Executors
The Executors of your Will 'can' also be the witnesses to your Will, so long as they satisfy the usual criteria referred to above. However, this is not advisable nor considered best practice and certainly should not witness your Will if they are an intended beneficiary under your Will as explained above.
Witnesses and beneficiaries
If you ask a beneficiary of your Will to also be a witness to it, then any gift you may have made in your Will to them will most likely fail. This will have no bearing on the validity of the rest of your Will. The general rule and best practise position, therefore, is that beneficiaries shouldn’t also be witnesses. But, as with many rules, there are some exceptions:
If the witness is a professional Trustee or Executor who benefits from a professional charging clause in the Will. However, because the definition of professional Trustee is rather narrow, it is generally better to avoid, if possible, asking Trustees and Executors (and their spouses and civil partners) to be witnesses. Doing so may help to avoid complications in the future.
If the beneficiary only becomes a witness after the date of the Will. This means that a beneficiary of the original Will, who is not also a witness to it, will not lose their benefit under the Will if they subsequently witness a codicil – as long as the change being made by the codicil is not one from which they will benefit.
If, after the Will is executed, the witness marries or forms a civil partnership with someone who benefits under the Will, the gift left to the beneficiary under the Will remains valid.
If the Will is a privileged Will.
Despite the fact that there are some exceptions, they are largely to do with circumstances which have changed after the Will has been made. As a rule, you should therefore not ask anyone who is going to be a beneficiary to witness your Will.