You must sign your will in front of two witnesses. The witnesses then sign in front of each other and yourself, to confirm that they have seen you sign the document. They do not need to read your will, or know what is in it. One of the witnesses must later confirm under oath that all of the proper formalities of will signing were followed including confirmation that they were present, that the testator (i.e. person whose will it is) is known to them, that the will was executed at the place and on the date specified, and that the testator and all witnesses were of legal age when the document was signed.
Another option is an affidavit of execution, signed by one of your witnesses in the presence of a Notary Public. This sworn oath is appended to the will and stored with it, eliminating the need for the witness to testify in court during probation. This is a popular option.
If neither of the witnesses are living at the time of probate, or they cannot be found, all is not lost. It is possible that a witness can testify that the handwriting and signature of the testator are genuine.
Who can be a witness?
A witness must:
- Be 18 years of age or older
- Not be a beneficiary in your will
- Not be a spouse/interdependent partner of a beneficiary in your will
FAQs about witnessing a last will and testament
If your will is not properly witnessed, it may not be valid. So, let’s look at some common questions about witnessing a will.
No, a beneficiary cannot witness a will. Your witnesses – or their spouses – cannot benefit from your will in any way. If a beneficiary acts as a witness, they will be unable to receive the gift you intended for them.
In principle, an executor can witness a will. This is not advisable if the executor is to be compensated for their role under a clause in the will, as it raises the suggestion of undue influence.
No, they just have to be there when you sign it and confirm that you did so in front of them.
As long as your lawyer isn’t a beneficiary or the legal partner of a beneficiary, they can witness your will. You don’t need a lawyer to either write or witness your will.
Your witnesses can be married to each other, as long as they aren’t beneficiaries or the spouse of a beneficiary.
This is not ideal. Your witnesses should be independent of you, and be able to prove this should the will be challenged in court.