When A Witness to a Will Cannot Be Found

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.

 Why Witnesses Are Important in a Will in England and Wales

A common flashpoint in contentious probate disputes arises when a witness to a will cannot be found following the testator’s death and the validity of the will is being challenged. In England and Wales, the proper execution of a will goes beyond a technical formality and plays a central role in ensuring the law upholds the testator’s final wishes.

So if a witness to a will cannot be located, this situation can have far-reaching effects on the beneficiaries of the estate.

If you are involved in a will dispute and a witness to your loved one’s will cannot be found, it is vital to get legal advice on what to do next.

Why Witnesses Matter

Under Section 9 of the Wills Act 1837, a will only has legal effect in England and Wales if it meets strict execution requirements. In summary, the following apply:

• The will must be in writing;
• The testator must sign it (or direct someone to sign it in their presence);
• The testator must sign the will (or acknowledge their signature) in the presence of at least two witnesses at the same time.;
• Each witness must either attest and sign the will or acknowledge their signature in the testator’s presence.

These rules exist to provide strong evidence that the will genuinely records the testator’s intentions, made freely, and without undue influence. Without witnesses who can verify what they saw, establishing this legal foundation becomes much more difficult.

What to Do When You Cannot Find a Named Witness?

When a will is submitted for a grant of probate, the probate registry expects the original, properly executed will. However, if you cannot find a named witness, the will does not automatically become invalid, but it does complicate matters. Examples may include they may have died, moved abroad, or are otherwise uncontactable,

Here’s how such situations may typically unfold in practice:

Presumption of Due Execution

If the will shows the testator’s signature and two witness signatures, the law presumes that someone executed it properly. The probate registry usually accepts this presumption unless there is evidence to the contrary.

This means that simply not finding a witness doesn’t automatically void the will. However, if someone contests that the execution was not lawful, the missing witness issue becomes a focal point.

Probate Without Witness Verification

If the probate registry cannot contact witnesses, it may still grant probate based on the original document and other evidence, unless there is a dispute. The registry expects the executor to have taken reasonable steps to locate the witness. Such steps include checking known addresses, contacting family, or using professional tracing services.

If there is no sign of fraud and no one directly challenges the execution, the registry may still proceed unless someone later brings a challenge.

Challenges Based on Missing Witness Evidence

A will challenge premised on missing witnesses usually centres on lack of due execution. This means claiming the will was not signed and witnessed in accordance with the law. This is one of the core recognized grounds for disputing a will.

A challenger might argue that:

• The named witness never actually saw the testator sign the will;
• The witness may have signed later, or not at all;
• The witness lacks recollection or credibility;
• There is evidence suggesting the will was improperly executed.

In practical terms, if neither witness can confirm that they saw the testator sign the will, it becomes easier to argue that the will does not meet the legal requirements for execution.

The Impact of One Missing vs. Two Missing Witnesses

There is an important practical distinction:

• One missing witness with the other available and reliable: The available witness can be asked to give evidence about the execution. If their testimony is credible, this can be enough to satisfy due execution. This applies even if you cannot find the other witness..
• Both witnesses missing or unable to recall execution: This is far more problematic. Without testimony confirming proper witnessing, the presumption of due execution weakens, giving a challenge stronger footing.

If you cannot trace both witnesses, or they cannot remember key details, the court may require additional evidence to support the will’s validity.. This may include solicitor notes, correspondence, or other documentation showing the circumstances of signing).

Alternatives When Witnesses Cannot Be Located

In some cases, a solicitor or executor can rely on secondary evidence to strengthen the will’s validity. This may include:

Affadavit Evidence

An executor or another witness can file an affidavit detailing what they know about how the testator executed the will.

They can explain how they chose the witnesses, where and when the signing took place, and the steps they took to contact the witnesses.

Family members, legal advisors, medical professionals, or others present during the execution can provide affidavits to support the will when a direct witness is unavailable.

The Consequences of a Challenge Succeeding

When you cannot locate a witness to a will and someone challenges it:

• The will is declared invalid.
• An earlier will (if one exists) may take effect instead.
• If no earlier will exists, the estate is distributed under the rules of intestacy, which may significantly alter the intended distribution.
• Beneficiaries who stood to inherit under the challenged will could lose out entirely.

These outcomes underline why contested probate cases which involve missing witnesses can have profound financial and emotional consequences for families and beneficiaries.

Practical Steps for Executors and Beneficiaries

When you cannot find a witness to a will and someone challenges it:

• Executors should document all steps taken to locate witnesses.
• Seek legal advice early to assess the strength of the will’s execution evidence.
• Consider obtaining witness statements from anyone who was present at or around the time of signing.
• Where appropriate, inform beneficiaries about the potential risk of a dispute to help manage their expectations.

Need Help Today?

In England and Wales, credible witnesses can play a pivotal role in a will dispute, and when someone challenges or defends a probate case, securing legal advice quickly is vital.

Acting early gives you the best chance of securing a fair outcome and protecting your loved one’s true intentions.

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