Witnessing a Will: Who Can Witness and the Rules You Must Follow

Signing a will incorrectly is one of the most common causes of wills being declared invalid or of beneficiaries losing their inheritance. The rules are not complicated, but they are strict — and they have been since the Wills Act 1837. Understanding exactly what is required before you sign, and who can or cannot act as a witness, can save enormous legal costs and family heartache after your death.

The Wills Act 1837: The Legal Requirements

Section 9 of the Wills Act 1837 (as amended) sets out the formal requirements for a valid will in England and Wales. These requirements are:

• The will must be in writing. There is no prescribed form, but it must be a document — verbal wills (“nuncupative wills”) have been abolished for most purposes.
• The testator must sign the will. The testator can sign their full name, initials, or even a mark — the key is that they intend the signature to give effect to the will. Someone else may sign on the testator’s behalf if the testator is physically unable to sign, but only if they do so in the testator’s presence and at their direction.
• The testator must sign in the presence of two witnesses. Both witnesses must be physically present together in the same room when the testator signs (or acknowledges their existing signature). They cannot sign on different days or in different rooms.
• Each witness must sign in the presence of the testator. After the testator has signed, each witness signs the will. They must do so in the testator’s presence, but they do not both need to be present when the other witness signs — only the testator must be present.

These requirements apply in England and Wales. The rules in Scotland are different — Scottish law does not require witnesses in the same way; a witnessed and signed will is still valid, but a signature before a single witness is sufficient to create a self-proving will.

Who Cannot Be a Witness: Beneficiaries and Their Spouses

This is the rule that catches people most often. Under section 15 of the Wills Act 1837, if a beneficiary named in the will — or the spouse or civil partner of a beneficiary — acts as a witness, that beneficiary forfeits their gift under the will.

This has a number of important implications:

• The will itself remains valid. A beneficiary witnessing a will does not make the whole will invalid — only the specific gift to that beneficiary is lost. The rest of the will continues to have effect.
• The spouse or civil partner of a beneficiary is also excluded. If your son is named as a beneficiary, his wife or husband cannot act as a witness without your son losing his inheritance — even if the spouse themselves receives nothing under the will.
• This applies to all types of gifts. Whether the beneficiary is inheriting a specific item, a sum of money, or a share of the residuary estate, the gift is forfeited if they or their spouse witnesses the will.
• Executors can be witnesses — being an executor does not affect validity as long as the executor is not also a beneficiary.

The practical consequence of this rule is that witnesses should always be people who receive nothing under the will and are not married to or in a civil partnership with anyone who does. Neighbours, friends, and professional acquaintances are ideal witnesses.

What “Independent” Means and Common Mistakes

There is no strict legal requirement that witnesses be “independent” in the sense of being strangers — they just cannot be beneficiaries or their spouses. However, in practice, using truly independent witnesses (people with no financial interest in the estate) is strongly advisable.

Common witnessing mistakes that can cause problems:

• Witnesses signing at different times: If one witness signs on Tuesday and the other on Wednesday, the will may be invalid because both witnesses were not present together when the testator signed.
• Only one witness present: A will witnessed by only one person (rather than two) is invalid in England and Wales.
• Signing a copy rather than the original: Only the original signed will is legally valid. Copies of wills, even signed copies, are not originals and cannot be admitted to probate in the same way.
• Testator signing after witnessing: The testator must sign (or acknowledge their existing signature) before or at the same time as the witnesses sign. If the testator signs after the witnesses have already left, the will is invalid.
• Blind witnesses: A witness must be able to see the testator sign. A person who is blind cannot act as a witness.

The minimum age for a witness is 18 in England and Wales. A minor cannot validly witness a will.

Remote Witnessing: The Covid-19 Rule That Has Expired

During the Covid-19 pandemic, the government introduced a temporary measure allowing wills to be witnessed remotely via a live video link. This was enacted as the Wills Act 1837 (Amendment) Act 2020 and came into force in September 2020, backdated to cover wills made from 31 January 2020.

This temporary measure expired on 31 January 2022. From that date, remote video witnessing is no longer legally valid in England and Wales. Any will witnessed remotely after 31 January 2022 is at risk of being held invalid.

Despite recommendations from the Law Commission that electronic wills and remote witnessing be considered on a permanent basis, as of early 2026 no permanent reform has been enacted. The position is therefore as it was before the pandemic: both witnesses must be physically present in the same room as the testator when the will is signed.

If you witnessed a will remotely during the Covid-19 period (January 2020 to January 2022) and are now unsure whether it was done correctly, seek legal advice — the specific rules during that period were more nuanced than a simple “video is allowed” and it is worth checking.

What to Do If You Find a Will That May Not Have Been Properly Witnessed

If you find a will after someone’s death and have reason to believe it may not have been properly witnessed — for example, you know that one of the witnesses was also a beneficiary, or you have been told the will was signed without anyone present — you should seek legal advice before applying for probate.

A potentially invalid will should not simply be ignored or set aside without seeking professional advice. The options available include:

• Investigating the circumstances of execution: A solicitor can take statements from the witnesses (if they are alive and can be found) to establish what actually happened when the will was signed. Sometimes what appears to be a problem turns out to be a harmless irregularity that does not affect validity.
• Applying for probate with the will: If the evidence of proper execution is sufficient, probate can proceed in the normal way.
• Applying to have the will declared invalid: If the will is clearly invalid, the estate may need to be administered under an earlier valid will or under the intestacy rules. This is a formal court process and requires legal advice.
• A deed of variation: If all beneficiaries agree, a deed of variation may be used to achieve a different outcome — but this is only available where there is a valid will or an intestacy to vary from.

Do not delay seeking advice — there are time limits on some legal proceedings and the cost of resolving a will dispute increases significantly the longer it is left.