Beneficiary witnesses and void gifts in a Will – new rules needed to include cohabiting couples

With various rules governing who can witness a Will, it’s important that Wills, trusts and probate lawyers and Will writers know how the witness is connected to the testator and beneficiaries to avoid gifts becoming void and Wills challenged. Very little has changed in a long time in terms of signing and attesting Wills, with the exception of ‘video’ witnessing as a result of the pandemic.

The Law Commission is however looking at the beneficiary witness law and has already made various suggestions including that a gift to the cohabitee of a witness should be void (as it already is for a spouse or civil partner of a witness).

For those writing Wills and likely to be involved in the witnessing of them, if in any doubt, the best course of action is to provide two completely independent witnesses.

For those administering estates, checking the connection of the witnesses to the deceased and any beneficiaries and being alive to the possibility the s.15 rule might have inadvertently been engaged should not be overlooked.

Nothing has been set in stone yet, but changes are potentially on their way to bring the rules up to date with modern living arrangements where many couples choose not to marry and there is little rationale for treating cohabitants of witnesses differently from spouses or civil partners. A very different environment to the nineteenth century!

A quick reminder of how the law currently stands on signing and attestation of Wills

s.9 of the Wills Act 1837 deals with the formalities for making a Will.

No will shall be valid unless:

1. it is in writing, and signed by the testator, or by some other person in his presence and by his direction; and
2. it appears that the testator intended by his signature to give effect to the Will; and
3. the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
4. each witness either attests and signs the Will, or acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness), but no form of attestation is necessary.

For the purposes of points 3 and 4, in relation to Wills made on or after 31 January 2020 and on or before 31 January 2022, “presence” includes presence by means of videoconference or other visual transmission.

A quick reminder of the rules for witnesses to a Will

• A blind person cannot be a witness In the Estate of Gibson [1949] 2 All ER 90
• A person who is not mentally competent to give evidence can be a witness, but because of the difficulty of obtaining reliable evidence they should be avoided. s.14. Wills Act 1837
• A child can be a witness, but again should be avoided unless they are of sufficient age to be able to give credible evidence of the Will signing and witnessing. Wilson v Beddard (1841) 59 ER 1041 (14-year-old)
• A person that might inherit on intestacy all or part of the estate can be a witness (subject to the further points below) but it is not advisable – if the validity of the Will is challenged at a later date, they would have a conflict because they stand to gain from the failure of the Will.
• A beneficiary witness – a person involved in witnessing the will but also named as a beneficiary in the Will – can be a witness. However, they should not do so. The Will is still valid if a beneficiary acts as a witness to the Will, however the gift to that witness is void. This rule applies to any spouse or civil partner of a beneficiary acting as a witness. s.15 Wills Act 1837
• Witnesses have to sign or acknowledge their signature in the presence of the testator but do not have to do so in the presence of the other witness. Witnesses do not need to have any specific knowledge of what the document is. They do not have to know that the document they are signing is a will. Re Benjamin’s Estate (1934) 150 LT 417
• If the testator acknowledges his signature rather than signing in the presence of the witnesses, the witnesses do not need to know that acknowledgement is a formal requirement of valid execution. Kayll v Rawlinson [2010] EWHC 1269 (Ch)

What about a witness that subsequently marries a beneficiary?

The Will is still valid and the gift to the beneficiary is also valid.

Under the law as it currently stands the fact that a witness who at the time the will was executed was not married subsequently marries a beneficiary does not lead to the operation of the rule in s. 15. Thorpe v Bestwick [1881] 6 QBD 311.

Can a gift to a beneficiary witness ever be saved?

Yes. The gift will not be void if the will is formally witnessed by two other witnesses who do not take benefit under the Will. s.1 Wills Act 1837. In reality, it may be very unlikely that the Will was formally witnessed by more than two witnesses.

Another way the gift can be saved is the republishing of the Will by a subsequent codicil confirming the terms of the Will – assuming that the beneficiary witness does not once again act as a witness to the codicil. Re Trotter, Trotter v Trotter [1899] 1 Ch 764

There is no reported case law on the point but presumably the subsequent divorce of a witness from a beneficary named in a will does not save an otherwise void gift and the s.15 rule considers the nature of the relationship at the date the Will is signed, not at a future date such as the date of death. A disappointed beneficiary faced with this unusual set of circumstances might feel it worth arguing the point particularly if the divorce was completed in the lifetime of the testator.

What does “but no form of attestation shall be necessary” mean?

The law around what attestation by a witness means is not clear. The Law Commission suggests that it does not require anything more than the witnesses being present and bearing witness to the testator’s signature (or his or her acknowledgement of the signature) and the Law Commission concludes then the requirement for the witness to “attest” per s.9 (1) (d) (i) appears redundant. It is likely that the wording of this subsection is going to be changed when the Law Commission work on this area is completed.

The “no form of attestation shall be necessary” wording at the end of s.9 is no doubt intended to avoid prescribing a set attestation clause wording that then creates an extra barrier for the creation of a valid Will and perhaps makes it more difficult for individuals to make a Will.

What is the presumption of due execution?

If it appears on the face of the Will that the formalities set out in s.9 of the 1837 Act have been complied with, then this allows the court to presume that the Will was validly executed and expresses the testator’s intentions. Perkins [2006] WTLR 425 at [6] by Neuberger LJ. It is said that “the strongest evidence” is required to rebut the presumption of due execution. However, the presumption applies with greater or lesser force according to the circumstances of each case.

There are exceptions: where it is a statutory Will, a privileged Will or where the formal validity of the Will is determined by the law of a foreign jurisdiction not English law.

A strong presumption arises where a will contains a formal attestation clause. An attestation clause in a Will records compliance with s. 9 of the 1837 Act in the execution of the document; an example would be:

Dated this… day of … 20…

Signed by the testator in our presence and then by us in his.

[Signature of testator]

[Signature, addresses and descriptions of two witnesses]

Conclusion

There are sound policy grounds for the s.15 rule along with the other rules concerning the witnesses to a Will. The direction of travel seems to be towards widening the remit to reflect that a significant percentage of the adult population now cohabits without marrying and the possibility that a witness’s cohabitant might benefit from a Will is therefore significantly more likely to occur now than in the nineteenth century. It therefore makes sense that the rules on who should be prohibited from acting as a witness are widened to include cohabitees.