Witnessing a Will Correctly

Written by Tanya Waterworth, Digital Content Writer

About Our Legal Expert: This content is produced with oversight by Michael Jefferies, Managing Director who has over 30 years’ legal experience.

A Simple Guide to Avoid Probate Disputes

Witnessing a Will correctly is crucial to ensuring it is not challenged or made invalid. Making a will is one of the most important steps you can take to protect your loved ones and ensure your wishes are respected after your death. However, even the most carefully written Will may fall short of being legally valid if it’s not witnessed correctly.

There are strict rules governing who can witness a Will and how the process can be carried out. Challenging a Will falls under contentious probate and if you suspect a loved one’s Will was not correctly witnessed, you may consider making a contentious probate claim.

At Jefferies Claims, we partner with solicitors who are experienced in contentious probate and who can help. We offer a range of fee structures, including ‘No Win, No Fee’ for certain cases along with other flexible funding – speak to our team to find out more.

What Makes a Will Legally Valid?

To be legally valid in England and Wales, a will must meet the following criteria (although these may change with the proposed new Wills Act 2025) :

• The person making the will (the testator) must be 18 or older.
• They must be of sound mind and acting voluntarily.
• The will must be in writing.
• It must be signed by the testator in the presence of two witnesses.
• Both witnesses must sign the will in the presence of the testator.

These rules  are designed to prevent fraud and ensure the testator’s intentions are clear.

Who Can Witness a Will?

Not just anyone can witness a will. The law requires that witnesses:

• Be 18 or older (16 in Scotland).
• Have mental capacity to understand the act of witnessing a legal document.
• Must not be a beneficiary of the will or married to someone who is.

This means you cannot ask your children, spouse, or anyone who stands to inherit from your estate to act as a witness. Doing so could invalidate part, or all, of your will.

Good Choices for Witnesses Include:

• Neighbours
• Friends
• Colleagues
• Your solicitor (if not named in the will)

 Avoid These Common Mistakes:

• Asking a beneficiary to witness the will
• Having witnesses sign at different times or locations
• Using only one witness (unless you’re in Scotland)

When Should the Witnesses Be Present?

Timing is everything. The testator must sign the will in the physical presence of both witnesses at the same time. They must see the testator sign the document, and the testator must see them sign it too. So, this mutual visibility is essential, even if no one reads the contents of the will.

What Happens If a Will Is Not Witnessed Correctly?

If a will is not properly witnessed, it may be declared invalid. The court may distribute the estate according to intestacy laws, which often fail to reflect the testator’s wishes. For example, if the testator signs the will alone and later asks witnesses to sign separately, someone may challenge the will during probate.

What Is a Contentious Probate Claim?

A contentious probate claim arises when someone disputes the validity of a will or how an estate is being administered. Common reasons include:

• Allegations of undue influence
• Claims the testator lacked mental capacity
• Improper witnessing or signing
• Fraud or forgery
• Disputes over inheritance

Family members, beneficiaries, or individuals who feel unfairly excluded typically bring these claims. However, incorrect witnessing is just one of several drafting mistakes — here are the top five will‑writing errors that lead to disputes.

When Should You Consider Making a Contentious Probate Claim?

You might consider making a claim if:

• You believe the testator did not sign the will correctly or have it properly witnessed.
• You suspect someone pressured the testator into changing their will.
• You have evidence the testator was not mentally capable.
• Someone promised you something that the will does not reflect.
• You believe the will is a forgery or was tampered with.

It’s important to act quickly. Therefore, in most cases, you must bring a claim within six months of the grant of probate, although exceptions exist for fraud or lack of knowledge.

How to Prove a Will Is Invalid

To challenge a will, you’ll need evidence. This might include:

• Medical records showing the testator lacked capacity
• Witness statements about undue influence
• Proof the will was signed without proper witnesses
• Handwriting analysis in cases of suspected forgery

Legal advice is essential as contentious probate claims can be complex. A solicitor can help you gather evidence and assess the strength of your claim.

How to Avoid Contentious Probate Claims

The best way to avoid disputes is to ensure your will is properly drafted and witnessed. Here are some tips:

• Use a solicitor or professional will writer.
• Choose independent witnesses with no stake in your estate.
• Sign the will in front of both witnesses at the same time.
• Store the will safely and let your executor know where it is.
• Review your will regularly and update it after major life events.

Real-Life Example: A Costly Mistake

David, a retired teacher, wrote his own will using a DIY kit. So, he signed it alone in his living room and later took it to two neighbours to sign separately. Neither neighbour saw David sign the will. After his death, the will was challenged, and the court declared it invalid. His estate was distributed under intestacy rules, excluding the charity he had intended to support.

Final Checklist for Witnessing a Will

Before signing your will, ask yourself:

• Are my witnesses over 18 and mentally capable?
• Are they independent (not beneficiaries or married to one)?
• Are both witnesses present at the same time?
• Can they clearly see me sign the will?
• Can I clearly see them sign it?

If you can answer “yes” to all of these, your will is likely to be valid.

Starting a Contentious Probate Claim

If you have questions about witnesses for a Will and want to find out more about a contentious probate claim, get in touch today. We can guide you through the process of what to do next.

Call us at 0333 358 2345 or contact us online and we will call you back at a time suitable to you.