Witnessing is one of the steps most likely to go wrong when a Will is signed. A common question is: can a beneficiary be a witness to a Will? In England and Wales, the short answer is that they can sign as a witness, but they will usually lose their gift. This guide explains the rule, the limited exceptions and what to do if it has already happened.
How a Will must be witnessed
Under section 9 of the Wills Act 1837, you must sign your Will, or acknowledge your signature, in the presence of two witnesses. Both witnesses must be present at the same time. Each witness then signs, or acknowledges their signature, in your presence.
Witnesses must be physically present. The temporary rules that allowed witnessing by video ended on 31 January 2024. A witness should also be an adult with the capacity to understand what they are doing, and should be able to see you sign.
Can a beneficiary be a witness? The section 15 rule
Section 15 of the Wills Act 1837 deals with witnesses who benefit. If a beneficiary witnesses a Will, their gift under that Will is void. The same applies if the witness is the spouse or civil partner of a beneficiary.
Importantly, the Will itself stays valid. Only the gift to the witness, or to their spouse or civil partner, fails. The rest of the Will takes effect as normal, and the failed gift usually falls into the residue of the estate.
For example, imagine a Will that leaves £10,000 to a niece, and the niece’s husband signs as a witness. The Will is still valid, but the niece loses the £10,000. Instead, that money passes to whoever receives the residue.
Are there any exceptions?
So can a beneficiary be a witness and still inherit? The rule is strict, but in a few situations the gift survives.
- A third, independent witness. Under the Wills Act 1968, if the Will was properly witnessed by at least two other people who do not benefit, the beneficiary-witness’s signature is disregarded and they keep their gift.
- A later codicil or new Will. If the gift is confirmed in a later codicil or new Will witnessed by people who do not benefit, the gift can take effect under that later document.
- Marriage after witnessing. The rule applies to someone who was the witness’s spouse or civil partner at the time of witnessing. A later marriage does not affect the gift.
Sometimes the lost gift falls into residue that is not fully disposed of by the Will. In that case, part of the estate may pass under the intestacy rules, and the witness may then inherit as a relative. However, this is not a true exception, and it is rarely the outcome anyone intended.
Other risks of a beneficiary witness
Even where a beneficiary can be a witness without losing out, their signature can raise questions about how the Will was made. For instance, other family members may suspect undue influence. If there is no real problem, suspicion alone can still lead to disputes, delays and cost.
Choosing suitable witnesses
To reduce these risks, follow some simple good practice:
- Choose witnesses who do not benefit under the Will and are not married to, or in a civil partnership with, a beneficiary.
- Prefer independent people, such as neighbours or friends who are not named in the Will. The law does not ban family members, but independent witnesses help avoid later questions.
- Choose adults who are likely to be contactable in future, in case they are ever asked to confirm how the Will was signed.
- Make sure both witnesses are in the room together when you sign.
What if a beneficiary has already witnessed the Will?
If the person who made the Will is still alive and has capacity, the simplest fix is to sign a new Will with independent witnesses. If A.D.E. Wills wrote the Will, we can make a minor change through a Will update instead. This costs £80 for a single Will or £135 for a couple, with no VAT charged.
If the person has already died, the gift is usually lost. However, the beneficiaries who do inherit can choose to redirect part of their inheritance to the witness. This is normally done by a deed of variation within two years of the death. It is voluntary, and everyone giving up part of their share must agree. For advice on this, we can refer you to an appropriate professional.
How A.D.E. Wills helps with signing
Every Will we prepare comes with a step-by-step Signing Guide explaining who can and cannot witness it. If you would prefer us to attend, our Will Signing Service covers conducting the signing, with Edward acting as one witness. Prices are fixed and shown on our Wills Pricing page.
If you are unsure whether a beneficiary can be a witness in your situation, call 01865 507174 or email info@adewills.co.uk. You can also read more about our Wills.
