Making a Valid Will – What are the Formalities and Who can act as a Witness?

We often get asked who can act as Witnesses. The law says that any adult with capacity can act as a witness. It doesn’t matter if the witness lives in the UK or not and the witness does not have to read the Will. However, you should choose your witnesses carefully and your witness should not be a beneficiary, or a spouse of a beneficiary, under the Will otherwise they will lose their gift or entitlement under the Will. The Will would still be valid if a beneficiary, or spouse of a beneficiary, acts as a witness, but the beneficiary would lose their entitlement under the Will.

We are also often asked if an informal note, email or conversation recording intentions for a Will would be valid before finalising a Will. The law is clear in so far as a valid Will must be in writing, made by an adult with capacity and signed in the presence of two witness who are both over 18. However, the Law Commission is currently considering whether the law about making a valid Will should be updated particularly as the law about making a valid Will is dated 1837.

The Law Commission is considering whether the Court should be able to recognise an expression of intentions for a Will made in a text message, email or other electronic method. This would only apply in situations where an individual dies unexpectedly without a valid Will and there are lots of potential issues that still need to be carefully considered. For the time being, and even if this does progress, then it is still extremely important to have a valid Will in place to avoid complications and potentially costly disputes following death.