Do I need a new Will if one of my witnesses dies before me?

Do I need to make a new Will if one of my witnesses dies before me?

There is often some confusion and misunderstanding about what happens if one of the witness to your Will dies before you, so here we will explain the effect the death of a witness has on the validity of a Will.

will-witnessing
It is essential to get your Will witnessed correctly

Who can witness a Will

Any adult who has “mental capacity” can witness your Will, as long as they are not a beneficiary, or married to a beneficiary. Legally, the only qualification for your witnesses is that both are over 18 years of age. Since both must see you signing your will, an implied qualification is that neither is blind. By law, your Will needs to be witnessed by two witnesses for it to be valid. It is all about preventing fraud. There is a need for two witnesses to be present at the same time, so that each one can confirm that they watched you sign your Will on a particular day and at a particular place.

What happens if a witness dies before me?

If a witness dies before you, or ‘pre-deceases’ you in legal language, it won’t invalidate your Will. That in a nutshell is the answer to the question do I need to make a new Will if one of my witnesses dies before me? However, very occasionally it may be the case that when applying for probate, the executor could be asked to provide proof that a witness has died and that their signature is valid. In practise, this is very rare.

When making a Will, it is essential that it is witnessed correctly. That is why for every Will we create, we include a complimentary “Will Signing Guide” to explain the process.

The Perils Of Will Templates

Will Drafting Tips from the Bench

A will template may seem like an excellent no-frills, no-fuss solution for solicitors that find that a percentage of their business involves the drafting of wills. However, Gerry W. Beyer, a blogger on the Law Professor Blogs Network, cautions against using a one size fits all solution for will writing.

Mistakes can happen when writing wills. Some errors are more likely to occur when using a prepared templated form. Poor processes concerning the witnessing of the Will ceremony is often a problem area; inexact wording and cutting and pasting errors are other areas of concern, more likely to pop up when relying on a will template.

Key Takeaways:

  • Using a will template leaves people more open to mistakes caused by copying and pasting errors.
  • A prepared, standard form can also incorporate ambiguous language that is inexact and likely to cause a problem later.
  • Improper execution of the will ceremony is also more likely when attorneys use a will template.

Beyer states “Unfortunately solicitors who maintain an all-purpose “standard” will form may be unaware of certain perils, which tend to be uncovered only after their client has passed.”

Our comment is that there is no excuse for imprecise language.

Read more: Law Professors – Tips From The Bench.