For a will to be legally binding, it must be a physical document signed by the person whose will it is.
It also has to be signed by two "witnesses" - other people who are over 18 and not beneficiaries of the will (or the spouse of a beneficiary).
Once this is done, it is legally valid and enforceable.
There are four important criteria that all valid wills must meet:
- The person making the will must be over 18, not under any undue influence, and have 'testamentary capacity'
- The will must be properly written and formatted
- The will must be signed by the person making the will and two witnesses
- The person making the will must understand what is in it, the effect that it will have, and approve of it's content
What is a witness?
To make your will legally binding, two people have to watch you sign it. They are your witnesses. A witness can be a friend or acquaintance, but in some cases we recommend asking a medical practitioner. Your witnesses must be:
- over the age of 18
- not a beneficiary of your will or someone married to a beneficiary
After watching you sign your will, your witnesses will need to add their details and signatures. Your Farewill will includes clear guidance on how to do this.
Why might I need to ask a medical practitioner to witness my will?
The law recommends that anyone elderly or seriously ill should ask a medical practitioner, such as a GP, to act as a witness to their will. This is to do with being able to prove that you are able to make decisions for yourself (known as ‘testamentary capacity’). This has been known to apply to people such as the elderly, the recently bereaved and people with mental and terminal illnesses. If you fall into any of these categories, we recommend asking a medical practitioner to act as one of your witnesses. You could ask your GP, although they’re not obliged to say yes. And remember, you’ll still need a second witness.
What is testamentary capacity?
Testamentary capacity is the legal term used to describe a person's legal and mental ability to make or alter a will. In general, if someone can do all four of the following things, they have testamentary capacity:
- Understand the extent and value of their property
- Understand they're making a will and deciding who will inherit their property
- Understand who the people are that are closest to them (the people that might expect to be left something in the will), and
- Not be suffering from a delusion which makes them act differently from normal
If there could be doubt about your testamentary capacity, we recommend asking a medical practitioner to act as one of your witnesses. This can help to prove that you have capacity to sign your will.