Can a beneficiary witness a will?

Can a Beneficiary Witness a Will?

As an testator, beneficiary or potential beneficiary of a will, one question that might cross your mind is, can a beneficiary witness a will?. The answer to this question is not straightforward as many legal intricacies will define whether a beneficiary can witness a will and whether it is advisable to do so. Read on to find out more.

Can a Beneficiary Witness a Will?

The simple answer is Yes, a person can bear official witness to a will they’re listed as beneficiary, but with a caveat, it is not advisable.

Even though a will is a legally binding document, there are several factors that can render part or entirety of it invalid. Such factors include:

  • Undue influence
  • duress
  • mistake
  • fraud

Undue influence

Undue influence can render a will void, meaning beneficiaries will not be entitled to those properties apportioned to them in the will. The main reason why the answer to the question “Can a beneficiary witness a will?” is Yes but not advisable is that, wills can be contested.

In the event that a will is being contested in probate court, it becomes easy for the contestants to allege undue influence when a beneficiary to the will is also a witness. In such a situation, defense is difficult unless, there were two or more witnesses who attest the will was not signed under duress.

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Active procurement

Other issues that can be raised by a contestant if a beneficiary is a witness to a will is active procurement, establishment of which can render a will null and void. This can be established by the consideration of criteria such as:

  1. presence of the beneficiary at the execution of the will;
  2. presence of the beneficiary on the occasions when the testator made known their desire to make a will;
  3. recommendation by the beneficiary of an law to draft the will.
  4. beneficiary knowing contents of a will before it’s execution;
  5. Guidance of lawyer by beneficiary on how to prepare the will;
  6. beneficiary getting witnesses to sign the will
  7. beneficiary keeping the will following execution.

Carpenter’s Estate, 253 So.2d 697, 702 (Fla. 1971)

A seminal judicial precedence for the establishment of undue influence is seen in the case: Carpenter’s Estate, 253 So.2d 697, 702 (Fla. 1971). The presence of the beneficiary during the execution of the will was a contributory factor.

Obviously, this is a situation one can avoid by not bearing witness to a will they’re to benefit from. It is advisable that a beneficiary is not present during the process of will execution to remove all possibilities of undue influence in case of a contest.

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Who can be the witness of a will?

A will can be witnessed by anyone who is 18 years or older and is of sound mind. Such a person can be a colleague at work, friend, pastor, imam etc. It must be noted that such a person cannot be a beneficiary, spouse or civil partner of a beneficiary. It is advisable that witnesses be younger than testator.

Can a family member be a witness to a will?

Yes, a family member can be a witness to a will but such a person cannot be listed as a direct or indirect beneficiary of the will. It is not advisable for a beneficiary to witness a will because incase of a contest, the establishment of undue influence by virtue of beneficiary being a witness can render the will invalid.

Can my sister witness my will?

Yes, so long as she is not a direct or indirect beneficiary of the will. As a rule of thumb, a beneficiary of a will must not be a witness to the will, must not know the content of the will and must not be involved in the decision to execute a will, it’s drafting and final execution.

Can an executor be a witness to a will?

Yes, the person administering a will (Also known as executor), usually an attorney, can be a witness to a will provided that he/she is not a direct or indirect beneficiary to the will.

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Can a solicitor witness a will?

Yes, a solicitor can witness a will whether he/she is the one administering the will or not. The only requirement is that, the solicitor cannot be a beneficiary, spouse or relative to a beneficiary of the will.

Where to find witnesses for a will

For a will to be considered a legally binding document, most states require that it be witnessed by two people. Adding a self-proving affidavit is an extra step to avoid contests during probate hearing.

Finding witnesses for a will is relatively easy; your attorney, friends, colleagues, neighbors, church members etc. can sign as witnesses provided they or close relatives of theirs are not listed as beneficiaries.

An affidavit testifying you were of sound mind while executing the will can be notarized at a publicly available and authorized notaries public also known as commissioner of oaths in some countries. Such a self-proving affidavit is not a requirement to make the will valid, but is recommended to avoid any possibility of contest.

Conclusion

A will is a document detailing how a person want’s his or her properties to be shared, naming who inherits what. For a will to be valid, it must be signed by two witnesses who must not be listed as beneficiaries in the will or close relatives to beneficiaries.

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Guideline Law