Monday, July 5, 2010

Who can witness a Will?


It's easy to make mistakes when you're making legal documents without a lawyer, and witnessing is certainly an area that causes problems. To be fair, I have once or twice seen lawyers make mistakes with witnessing too!

Who can witness a person signing his or her Will or Codicil? Pretty much anyone who has reached the age of majority and is mentally competent can be a witness, but there are some exceptions.

No beneficiary of your Will should be a witness to that Will. Neither should that beneficiary's spouse or common-law spouse be a witness. If they do act as a witness, the gift you want to leave to that beneficiary becomes invalid. Not only would that disappoint the beneficiary, but it could also leave you partially intestate (i.e. some assets not covered by the Will).

It is perfectly alright for your executor to be a witness. However, that won't work if the executor is also a beneficiary, as mentioned in the previous paragraph. If the executor acts as a witness, he or she might also be endangering his or her chance of being paid for acting as your executor.

It is alright for a creditor of the deceased to be a witness.

When I'm visiting a person at their home or at a care facility to have a Will signed, it isn't always possible for me to bring witnesses along. In a case like that, neighbours or staff at the care facility can act as witnesses. To protect my client's privacy, I do not ask the neighbours or the staff to read the document, though I make it clear that it is a Will that is being signed.

A Will has to be signed by the testator in front of two witnesses who both watch him or her sign. Then the witnesses both sign in front of the testator and each other. Later, one of the witnesses must sign an Affidavit stating that all of the proper formalities of Will signing were followed.

A holograph Will that is 100% in your own handwriting does not need to be witnessed (make sure you date it and sign it though).

9 comments:

  1. Can the brother-in-law of the lawyer who drafted the will, sign as a witness.

    ReplyDelete
    Replies
    1. Yes. The relationships that matter in terms of witnessing are those of the testator, not the lawyer.

      Lynne

      Delete
  2. Can my brother and his wife sign as witnesses on my will?

    ReplyDelete
    Replies
    1. Yes, they can, as long as neither of them is ever going to be a beneficiary of your will. If they are, then the witnessing will be valid, but they will never receive their inheritance under the will.

      Lynne

      Delete
  3. In this article you say " To be fair, I have once or twice seen lawyers make mistakes with witnessing too!" What can be done if this happens? In our case my Grandmother has passed away and now we have found out that her lawyer allowed my aunt (a named beneficiary of the will) to act as a witness.If it is known by all of the beneficiaries that the lawyer made a mistake by allowing a named beneficiary of the will act as a witness is there a way to allow my aunt to have what she should be inheriting?

    ReplyDelete
  4. Does a codicil need to be a registered attachment to a registered notarial will?

    ReplyDelete
    Replies
    1. A codicil is intended to be a part of the will, therefore if a will is listed in a registry, it only makes sense to list the codicil as well. And they should physically be stored together as well.

      Lynne

      Delete
  5. can a lawyer have his secretary sign as a witness

    ReplyDelete

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