Does a will witness need to be over 18?
02 July 2021
Now that school is over, your thoughts are turning to summer holidays and ways of occupying the munchkins. While there are many useful occupations for children in the office (photocopying, answering the phone, preparing batches of section 72 declarations that nobody will read) you might be thinking to yourself, “Well, maybe the kids could come with me when I witness a will?” Sounds like a great idea. However, before you hawk your non-communicative teenager around the county, it would be best checking the rules on capacity of witnesses to a will. The gut reaction of course is that a witness should be over 18. That would be the prudent approach and the Law Society Handbook on Will Drafting and Probate encourages that prudence. However, strictly speaking there is no prohibition on a child witnessing a will. There are three main provisions under the Succession Act relating to witnesses:-
- S. 78 – Which is the section that requires a will to be executed before two witnesses.
- S. 81 – Which provides that just because a witness is at the time of execution incompetent to be admitted to prove the execution, this does not invalidate the will.
- S. 82 – Which is the provision relating to prohibiting witnesses from benefitting.
Spierin in his commentary in this area notes that the witness must “be physically and mentally competent” when the will is being made.
So unfortunately, it would appear safer to rule out that occupation for the rug rats. However, tea making, window washing and all sorts of other jobs that Dickens would frown upon are still up for grabs for the Summer.