" . . . ""'When they were both there, he signed the will and requested them to sign their own names beneath his signature.' Agatha Christie, Crooked House (1949) |
Witnesses
"...and by us in front of...."
After a standard opening sentence revoking previous wills, Victorian novelist Charles Dickens (1812-1870) immediately gets down to business: "I give the sum of £1,000 free of legacy duty to Miss Ellen Lawless Ternan, late of Houghton Place, Ampthill Square, in the county of Middlesex." Further down in the will, he lists gifts for his wife and other family members.
Ellen Ternan, a young actress, was his mistress - a well-kept secret for the last 13 years of his life.
The most convenient potential witnesses are family members and close friends and, as such, probably beneficiaries. Hard luck. Beneficiaries cannot benefit from a will they have witnessed. Find someone else.
If a solicitor draws up your will, witnesses are usually no problem at all - other people in the solicitor's office act as witnesses.
But if you make your own will or, more likely, codicils, and revise them often, you need proper witnesses for each version or addition.
Form and function
The recommended procedure is for the testator to sign in the presence of the witnesses, and for the witnesses to then attest - affirm - to having seen the testator sign the will. And the will contains words to that effect: "by him/her in our presence, and by me in his/hers."
Fiddle with this procedure at your own risk, and the risk of your heirs. If you are the testator, get both witnesses in the room together and follow the correct procedure. Resist the temptation to get one witness on one day, and the second witness on another occasion. They are actually asserting that they are/were both in the room together at the same time, and that time was when the will was signed by the testator. If you are asked to be a witness and the other witness is not present, suggest to the testator that he or she familiarise themselves with Ranjit Singh, who seemed to have a properly executed will. But his will was declared invalid because the witnesses actually signed at separate times. (See Cases.)
Seeing does not mean Reading
The witnesses are attesting only to having seen the testator sign his or her name. They do not have to see anything else in the document.
In her novel Crooked House, Agatha Christie uses this fact - witnessing only the signing without knowing or reading what is being signed - to allow the testator to deceive the family members who are present at the signing ceremony. He has told them that he has left a gift for each of them, and they think that this is the will that is being signed. In fact, he has hidden a different will among the documents, and it is this other will that he and the witnesses sign.
Christie wrote fiction. In England a decade ago a general practitioner asked two people in his waiting room to witness an already-signed signature of a patient who was in his treatment room at the time.
The doctor was Harold Shipman, and he used these signatures as samples when he created a fake will for this patient, whom he subsequently murdered. This fake will was crucial in the unmasking of this notorious serial killer.
Remember the basics of witnessing laws and rules
Witnessing a will should be part of a formal ceremony in which the testator and the two witnesses each sign the document in the presence, and while being observed by, the others.
A witness should not be a beneficiary, or the husband, wife or civil partner of a beneficiary.
If someone from this forbidden class does witness a will, they can not receive the legacy. The basic will remains valid and legal, however.
If the entire estate is willed to a beneficiary witness or their spouse or civil partner, the estate goes into intestacy.
