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Customers sometimes ask if a beneficiary can be a witness to a will. During periods of self isolation or lock down in family units there is a temptation to use someone who is a beneficiary. Our answer is always “no – never use a beneficiary as a witness”. Here’s why:
If a beneficiary acts as a witness to a will the law says that the will remains valid. But (and it’s a big “but”) the gifts to the witness are void. That means that the witness won’t get anything under the terms of the will. This is all set out in s15 of the Wills Act 1837.
This can lead to terrible disappointment and possible hardship. Imagine if you used a spouse, partner or child to be a witness. All of the gifts to them would be void.
Are there any exceptions? Yes. However, these exceptions are either (a) rare, or (b) unlikely to be of help.
Exception 1
The will can still be valid… but only if there are more than 2 witnesses and the signature of the beneficiary is ignored. s68 of the Wills Act 1968 sets out the rules.
This exception is unlikely to be much use. Most professionally prepared wills provide two spaces for the witnesses’ signatures. We protect our customers with our detailed instructions on how to properly witness a will and who can witness a will. We do not prompt our customers for a third signature. The take home message is to read the instructions very carefully.
Exception 2
The other exception is where a witness is a trustee. For example, a trustee of a secret or half-secret trust. These situations are very rare. Also it could be a dead giveaway that a “beneficiary” is actually a trustee of a secret trust. The case Cresswell v Cresswell (1868) sets out the rules for this exception.
NB – an executor who is charging for their time on a professional basis (e.g. a solicitor) is not treated as a beneficiary. s28 of the Trustee Act 2000 sets this out.
What to do instead of using the beneficiary as witness?
If you are stuck in self isolation or lock down there are other options. You can follow our guide on how to execute a will whilst self-isolating. In more extreme circumstances you could attempt to complete your will using video conference execution. Please see our heath warning relating to this.
