# What if a will is not properly witnessed?



## papervalue

Just out of interest i am wondering how common the following situation would be: A few years ago my father was widowed and decided to make a will leaving house to one member of family and dividing the rest equally between 4 other kids. All straight forward so far. The day he was making the will he met the Solictor on a Sunday Morning, I travelled to Solictor office with him and stayed outside. He met the Solictor and signed the will. As it was a Sunday Morning their was no one else present in the room to withness the will. My understanding is their has to be one to two withnesses of the Will. When he came out he said what had happened and who was getting what. I said in passing the will would be null and void due to no one present( They was two people paasing through the building but had nothing to do with meeting). The will is as signed that day.
When he does pass when ever- Would you challange the will as been null and void and let everything split 5 ways? Just Interested on legal view and is hard to prove.


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## huskerdu

*Re: How Valid is a Will When made?*

Just to clarify, are you sure that the signing of the will was not witnessed. 
Surely in the circumstances, it was witnessed by the solicitor and are you sure that there was no-one else in the solictors office at the time to witness it.


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## papervalue

*Re: How Valid is a Will When made?*



huskerdu said:


> Just to clarify, are you sure that the signing of the will was not witnessed.
> Surely in the circumstances, it was witnessed by the solicitor and are you sure that there was no-one else in the solictors office at the time to witness it.


 

I am certain, It was a Sunday Morning outside office hours. I always taught that the withness would be some one separate from solictor eg his secretary or any one else hanging around.


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## huskerdu

*Re: How Valid is a Will When made?*

It would be normal for the solicitor to be a witness to the will.


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## papervalue

*Re: How Valid is a Will When made?*

Do you not need two withnesses ?

Quote
You must sign or mark the will or acknowledge the signature or mark in the presence of two witnesses. 
Your two witnesses must sign the will in your presence 
Your two witnesses cannot be people who will gain from your will and they must be present with you at the same time for their attestation to be valid. 
Your witnesses must see you sign the will but they do not have to see what is written in it. 

Thanks


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## twofor1

*Re: How Valid is a Will When made?*

I signed my will in the presence of my solicitor and his secretary. Solicitor then signed it, then secretary signed it.


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## papervalue

*Re: How Valid is a Will When made?*



twofor1 said:


> I signed my will in the presence of my solicitor and his secretary. Solicitor then signed it, then secretary signed it.


 

My main point is it was not signed by a second person to me it makes it null and void.


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## mf1

*Re: How Valid is a Will When made?*

Do you want it to be null and void? 

If the will as drafted adequately reflects your father's wishes, can you not just let it drop? 

Or bring it to his attention now? Hey Pops, you know that will you made that Sunday when the solicitor went to all that trouble to open up the office for you? Well, I don't think it's valid so you'd better make another appointment because otherwise I'm gonna challenge it when you pop off?

I do wonder sometimes....................

mf


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## papervalue

*Re: How Valid is a Will When made?*

I suppose i am having a go at the legal profession more than anything- If i could spot a small flaw in the way this transaction was carried out, and just say i did challange the local solictor in year's to come, does this open to flood gates for all his others clients that felt hard done by, could other wills be set aside i wonder.


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## mf1

*Re: How Valid is a Will When made?*



papervalue said:


> I suppose i am having a go at the legal profession more than anything- If i could spot a small flaw in the way this transaction was carried out, and just say i did challange the local solictor in year's to come, does this open to flood gates for all his others clients that felt hard done by, could other wills be set aside i wonder.



This solicitor especially opens the office on a  Sunday to facilitate your father, the will as drafted expressly carries through your father's wishes BUT for some bizarre reason known only to yourself, you would upset your father, your entire family and perhaps a whole area / neighbourhood of grieving relations to have a "pop" at this solicitor? Oh, and the rest of the legal profession as well? 

Theres an old rule - pick your battles - and consider the effect of your "righteous" indignation at putting wrongs to wrongers.

mf


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## nuac

I doubt if any solicitor would fail to have a second witness for a will.

When a will is drawn outside the office the solicitor either brings a witness along, or has made arrangements for a witness to be available.

Alternatively there may not have been any will at all - Many an elderly person has been "encouraged" to call to the family solicitor, and in the privacy of a one to one consultation stated that they did not wish to do a will or execute a deed etc.


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## papervalue

nuac said:


> I doubt if any solicitor would fail to have a second witness for a will.
> 
> When a will is drawn outside the office the solicitor either brings a witness along, or has made arrangements for a witness to be available.
> 
> Alternatively there may not have been any will at all - Many an elderly person has been "encouraged" to call to the family solicitor, and in the privacy of a one to one consultation stated that they did not wish to do a will or execute a deed etc.


 
What more than likely happened is the second withness signed it on the following day Monday- What i am getting at is could a person on this forum with a legal background say that the will is still valid.

 i will not be challenging it - from my basic understanding of the law all clauses to make it a valid will were not met.


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## putsch

Witnesses must be present at the same time as each other. If this wasn't done then the will could be challenged but like other posters I doubt if the solicitor failed to get a 2nd signature there and then if indeed any will was signed on that day. About the only thing every solicitor remembers is that 2 witnesses needed at the same time.


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## huskerdu

Was your father not given a copy of his own will. 

You have decided that the someone lied and falsified a will by signing
as a witness when they did not witness the signature. That is a very serious allegation.
I am not a lawyer but I'm pretty sure that it is against the law. 
You would want to be sure of your facts before making this accusation. 

As mf1 says, if you feel strongly enough about this, the only person 
you can clear this up with is your father. 

If he wants to redo his will, because you have pointed out that 
there may be a problem, then great, 

If not, your suggestion that you
would potentially ruin family relations, to make a point, or to get more money in your fathers will, which he did not intend you to get, may make
you happy, or then again it may not..... Your decision.


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## papervalue

To conclude this discussion was about a legal issue. When it does come to the will in years to come i will do a section 8 discalimer- I will not take any money from will but instead discalim and allow estate to be divided between other 4 kids. This was never a money issue. This was similar to when my mother passed. she had no will and i returned my share to my father.

Thanks to all who took part.


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## FKH

I can understand the question as if there was only one witness to the will I think the Probate Office might reject a will with only one witness.

Having said that the Law Society do force it into you when you're training that there must be two witnesses to a will so I would doubt any solicitor would mess that up.

You could tell your father that you will disclaim and suggest that he change his will now to save the trouble later on.


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## Vanilla

You have no idea what transpired between the solicitor and your father. Generally when a solicitor arranges to meet someone for the execution of a will the first thought in their mind will be- who will be the second witness. It could very well be the case that the solicitor told your father that a second witness would be required and he failed to bring along that witness ( as has happened to me on an odd occasion).Or possibly your father thought that you could act as the witness but as a beneficiary the solicitor would have told him you couldn't. If that was the case, and no other witness was available the solicitor would have told your father that the will could not be executed there and then and may well have arranged to meet your father another day with a second witness. Either that or there was another witness in the building that you were unaware of because like the other posters, some of whom are also solicitors, I find it very hard to believe that any solicitor would allow someone to execute a will without a second witness and then get someone to 'witness' the will afterwards. Really that would be madness.


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## Bronte

I think the solicitor got his secretary to witness the following Monday unless he got one of the two people who went through the building to witness it which is also possible.  The only person who can challenge the legality of the will is you as no one else was there that day.  Why doesn't your father have a copy of the signed will which should clear up matters?  If you think the will is invalid you should advise your dad to do it again and he could leave you out of the will entirely as you are going to pass on receiving the inheritance in any case.


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## FKH

A solicitor cannot have his/her secretary witness a will a day later. Both witnesses must see the testator sign the will.

I agree with what Bronte is suggesting that it would be possible to add a second witness later and if no one knew this was done no-one could challange the will but that would be a breach of the law in respect of how will are to be witnessed and would make the will invalid.


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## nuac

Bronte I do not believe that any solicitor would leave it until the following day to have the second witness sign a will.

Apart from such a behaviour being contrary to law, the solicitor would expose him(her)self to an action from disappointed beneficiaries.

Even if the valdity or tems of a will were not being contested in many cases the Probate Registrar asks for an affidavit of due execution from the witnesses.  A lie in an affidavit is perjury.


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## papervalue

nuac said:


> Bronte I do not believe that any solicitor would leave it until the following day to have the second witness sign a will.
> 
> Apart from such a behaviour being contrary to law, the solicitor would expose him(her)self to an action from disappointed beneficiaries.
> 
> Even if the valdity or tems of a will were not being contested in many cases the Probate Registrar asks for an affidavit of due execution from the witnesses. A lie in an affidavit is perjury.


 
Personally i have little fate in this particular Solicitor. I fairly sure if i got a copy of will now it could be easily proved that it was not withnessed by 2 people in the room at that present time when father signed. (father is still alive and knews how many people in room at that time)

My father used this solictor around the same time my mothers estate was distributed.
When my mother passed away with no will- This solictor dealt with the distribution under succession act which is fine, you break up 2/3 husband and 1/3 kids-  He only counted the money that he got from the banks( no account of money that was sent direct to my father from some banks/ insurance policies companies) I dont have a legal background but i would have taugh you would could everything in a distribution. I got my share and signed cheque and returned it to my father but i dont think other siblings were aware they were under paid in distribution.


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## terrysgirl33

I'm pretty sure that things like insurance are payable to a nominated person, and don't make up part of the dead persons estate, so it sounds like everything is OK.


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## FKH

To be honest, everything else aside, so long as the will does what your father wants to happen when he dies you could just let things go unless you plan to contest it in the future to force an intestacy situation.

If you're very unhappy talk to your father and offer to pay for him to make a new will with a different solicitor that he doesn't know so everything will be above board.


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## elacsaplau

The dad of a friend of mine has lost capacity and his mom is deceased.

Recently, he looked at his dad's will and noticed, much like what may have happened in this thread, that there was somehow only one witness. Lots of inter-related questions arise.

Legally, can the terms of the will be followed by the Executor or not? Does the Executor have a duty of disclosure re insufficient witnesses? If challenged, would the will then be deemed invalid? Is this invalidation automatic or is there a process? (I'd prefer not to spell out precise circumstances to protect confidentiality - arguably not relevant to understanding the general legal points in any event).

Also, presumably, since his dad has lost mental capacity - there is nothing that can be done to amend the will at this stage?


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## mf1

On a professional basis, there is nothing that can be done. The will is invalid, nothing can fix it,  and, on the death, the rules of intestacy will direct where the estate is to go, which may or may not be in accordance with the deceased's intentions. 

On a practical basis and completely off the record, without prejudice, subject to contract and contract denied- you get the drift..............

If the dad can still write his name, has his own solicitor................
Or
If the original will came to me, on a professional basis,  with two signatures, how am I to know when the two signatures were endorsed?

mf


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## elacsaplau

MF,

Thanks and wow. Appreciated.


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