Missing Wills

[didds]

A major point (perhaps the major point) of having witnesses is so that they can speak after your death if queries or challenges arise.!

I get that entirely JonE now you've mentioned it ... but then why would anyone use a solicitor's underling that happens to be passing as the time, when in twenty years time said underling may have disappeared off the radar entirely?

And not to mention that any witness howsoever garnered could be dead in years hence anyway?

Just trying to rationalise your excellent point with standard procedures (it seems) and the realities of time.

didds

[Gengulphus]

A major point (perhaps the major point) of having witnesses is so that they can speak after your death if queries or challenges arise.!

I get that entirely JonE now you've mentioned it ... but then why would anyone use a solicitor's underling that happens to be passing as the time, when in twenty years time said underling may have disappeared off the radar entirely?

And not to mention that any witness howsoever garnered could be dead in years hence anyway?

Indeed - you simply cannot get certainty over that sort of timescale.

What you can do is shave the odds in your favour. A 30-year-old witness is much more likely to still be alive in twenty years' time than a 60-year-old witness. A solicitor's underling might be a trainee solicitor, with a good chance of still being in the legal profession and traceable because of that - or they might be a temp who's around for a week or two while the solicitor's normal secretary is on holiday...

Having said that, we really are talking about shaving the odds here - the vast majority of wills must go through without even attempting to get the witnesses' testimony. And even when it is attempted and the witnesses are found, the chances of their testimony being useful aren't all that high - memories fade over time. Many witnesses simply won't remember, many will remember that they witnessed you signing your will but nothing more - nothing about your apparent state of mind, for example. I'd guess the chances of the witnesses ending up making a difference are under 1% even if they could be guaranteed to be found - and so a choice between witnesses with say 60% and 30% chances of being findable only makes a small fraction of 1% difference to one's will going through as one intended.

Given that sort of small difference, I suspect most people choose the witnesses first for not having obvious problems (such as being a beneficiary under the will or being blind), then for convenience, with everything else being a distant third. Certainly that fits in with the common use of neighbours and solicitor's underlings...

So basically, one can choose witnesses with an eye on their chances of being able to give good after-death testimony about the signing of one's will - but whether one thinks it worth the effort is another question. One final comment is that as one gets older, the choice of witnesses does become somewhat more significant - first because allegations that one was not compos mentis at the time it was signed become more plausible the older one is, and secondly because on average, the witnesses' memories won't have had as long to fade. So I would probably choose the witnesses for a will that I signed as a 70-year-old with somewhat more of an eye on their chances of being able to give good after-death testimony about the signing than I would for a will that I signed as a 40-year-old. But I still wouldn't expect it to make a big difference...

Gengulphus

[Clitheroekid]

What Gengulphus says is quite correct. In practice, little or no thought is given to who witnesses a Will. Virtually the only criteria are that they aren't a beneficiary and can sign their name!

If it's signed in a solicitors' office the chances are that it will be the solicitor that prepared the Will plus another random member of staff. Although the solicitor himself may recall the occasion years later (and would also usually have an attendance note on the file) the chances of the staff member doing so are virtually zero.

The prioritizing of convenience over `quality' in choosing witnesses is almost certainly because in practical terms the choice of witnesses just doesn't cause a problem. In over 35 years of practice, during which time I've probated hundreds of Wills, I can recall only two occasions when I needed evidence from witnesses. In both cases the Wills were home made, and it wasn't clear that the witnesses had been present at the same time.

As G says, the chances of witnesses being able to recall the event in any detail years later are remote, and the chances of any witness apart from the solicitor being able to make any intelligent comment regarding the testator's capacity, undue influence and so on are effectively nil.

[JonE]

So basically, one can choose witnesses with an eye on their chances of being able to give good after-death testimony about the signing of one's will - but whether one thinks it worth the effort is another question. One final comment is that as one gets older, the choice of witnesses does become somewhat more significant

I was taking into account that OP's in-laws (MiL, certainly) were over 70 when the 2006 wills were drafted, that the drafting solicitor was not involved in the witnessing and, importantly, that OP's BiL had been excluded.

That latter factor seems, in my limited experience, to invite belligerence, bullying and other extreme behaviour from the excluded party (perhaps character traits which may have contributed to the decision to exclude) including commencement of legal moves (tiresome even when subsequently abandoned). The possibility of challenge may not apply at all in this case, of course, but it informs my general view on the topic.

In such circumstances I would take measures including a careful choice of witnesses rather than leave the will "more open to challenge than it need be". The choice of executor(s) and documents provided to them would be significant and I recognise that careful choice of witnesses offers only a marginal gain but it's something which I'd supposed OP's in-laws would have thought worth considering in their circumstances. If they had considered it carefully then each would, even 10 years later, be likely to have remembered considering it and not having any such recollection adds weight to the notion that the 2006 wills weren't validly signed.

The general experience and views expressed here suggest that the whole rigmarole of witnessing wills is generally regarded as being of no consequence with the 'correct' procedures not always being followed anyway so perhaps it should all be reduced specifically to mean no more than "the signature was made by the person who I know by that name" with the rest of the structure and rule-set just scrapped (though maybe retaining a witness not being a beneficiary and possibly adding a rule that a witness not be minor). That might even save a few wills being rendered invalid solely because every last detail of the witnessing procedures wasn't 'properly' observed - and would it actually provide increased opportunity for fraud, falsification and skullduggery?

Cheers!

[Lootman]

In such circumstances I would take measures including a careful choice of witnesses rather than leave the will "more open to challenge than it need be".

Yes, perhaps it's more important in this case because the Will is being written to specifically exclude a child who might normally be expected to inherit something. Compared with a more standard Will, it might make sense to seek special advice and take special care to avoid any risk of a later challenge by the excluded child.

Some countries do not allow parents to totally exclude a child from inheriting, France and Scotland being examples, I believe. Thankfully that is not the case in England and Wales. But, even so, whenever one is taking a more controversial approach like this, it might pay to be doubly sure about all the details.

The most important detail though, surely, is not to lose the document!

[Clitheroekid]

In such circumstances I would take measures including a careful choice of witnesses rather than leave the will "more open to challenge than it need be".

Yes, perhaps it's more important in this case because the Will is being written to specifically exclude a child who might normally be expected to inherit something. Compared with a more standard Will, it might make sense to seek special advice and take special care to avoid any risk of a later challenge by the excluded child.

In cases where a beneficiary who might reasonably expect to inherit (such as a child) is being deliberately excluded the normal practice is to have the testator sign a letter explaining the decision to exclude that beneficiary and for the letter to be left with the Will.

In the event that the excluded beneficiary does then indicate an intention to challenge the Will the letter can be produced, and in every case I've dealt with the claim simply evaporates (rather disappointingly from a purely financial point of view!)

However, this is not something that the witness to a Will (other than professionals) would ever expect to get involved in, and rightly so. In the vast majority of cases the testator actively wants the witnesses to be people he doesn't know. Most people feel that making a Will is a very private matter, and they therefore prefer witnesses who are just random strangers.

There's a great deal of misunderstanding about Wills being contested. Many people seem to think that it's easy to do so, and that an estate receiving a claim will probably just cave in and cough up, irrespective of its merits. This is emphatically not the case. Where the Will has been made properly it's actually very difficult to formulate a claim that would cause any real concern to the executors.

Over the years I've received lots of speculative claims, and in all but a couple of occasions a letter flatly rejecting the claim and pointing out the costs consequences of an unsuccessful claim has been enough to get rid of it.

This is largely because no rational solicitor will take on a high risk contested case on a no win no fee deal, and as soon as they ask for a couple of thousand on account to run the case that's usually the last they'll see of the client.

[JonE]

In cases where a beneficiary who might reasonably expect to inherit (such as a child) is being deliberately excluded the normal practice is to have the testator sign a letter explaining the decision to exclude that beneficiary and for the letter to be left with the Will.

In the event that the excluded beneficiary does then indicate an intention to challenge the Will the letter can be produced, and in every case I've dealt with the claim simply evaporates
[..]
no rational solicitor will take on a high risk contested case on a no win no fee deal, and as soon as they ask for a couple of thousand on account to run the case that's usually the last they'll see of the client.

Yes, it was just such a letter I had in mind when writing "The choice of executor(s) and documents provided to them would be significant".

My reference to "commencement of legal moves (tiresome even when subsequently abandoned)" reflects experience of a contest having been kicked-off but abandoned after much thrashing around (in a search for plausible grounds), posturing and general hassle. It was almost certainly abandoned because it was recognised by a solicitor as a no-hope contest even though presented as being because the poor soul didn't have the resources to finance his fully-justified claim to his fair entitlement.

Even when recognising that a threat of legal challenge is not of any substance, the other muck and bullets that can go with an excluded sibling kicking up a fuss can be extremely unpleasant and stressful so, if making such a will at an advanced age, I'd prefer (under current rules) to provide my executor and beneficiaries with the comfort of impressive, credible and (hopefully) available witnesses rather than 'random strangers' (as well as the letter of explanation and a professionally-drafted will). Gilding the lily? Yep. Unnecessary? It would seem so. Reassuringly 'correct''? I reckon so.

Cheers!

[Clitheroekid]

I'd prefer (under current rules) to provide my executor and beneficiaries with the comfort of impressive, credible and (hopefully) available witnesses rather than 'random strangers' (as well as the letter of explanation and a professionally-drafted will). Gilding the lily? Yep. Unnecessary? It would seem so. Reassuringly 'correct''? I reckon so.

This just doesn't reflect reality at all.

If you're choosing witnesses on the basis of their ability to give evidence it means that they would have to be involved in the entire Will-making process to a far greater extent than anyone except the solicitor.

It would mean them having to be involved in the discussions between the testator and the solicitor, or at the very least to have an independent meeting with the testator to satisfy themselves that he was compos mentis, not acting under undue influence and that he had properly taken into account the claims of potential beneficiaries to his estate.

This would be duplicating one of the main roles of the solicitor, and it's difficult to imagine how on earth one would find witnesses who would (a) be willing to take on such a heavy responsibility; and (b) would be acceptable in privacy terms to the testator.

The witnesses would also have to make formal records of their assessment of the testator if their evidence was to be of any worth years or decades after the event, and the whole palaver would add very substantially to the expense of making a Will for no discernible benefit.

I can tell you from decades of practical experience that if I were to suggest such a process to a testator simply to guard against such an infinitesimally small risk I would be told in no uncertain terms what I could do with my suggestion!

[Dod1010]

Going back to what witnesses are for, under Scots Law, the only responsibility of a witness is to witness the testator's signature, so he/she can be anyone. Indeed I have more than once used my next door neighbour. He/she has no responsibility other than to witness me physically signing the Will and he is testifying to that and that only. Is English law different in that regard?

Dod

[Gengulphus]

It would mean them having to be involved in the discussions between the testator and the solicitor, or at the very least to have an independent meeting with the testator to satisfy themselves that he was compos mentis, not acting under undue influence and that he had properly taken into account the claims of potential beneficiaries to his estate.

This would be duplicating one of the main roles of the solicitor, and it's difficult to imagine how on earth one would find witnesses who would (a) be willing to take on such a heavy responsibility; and (b) would be acceptable in privacy terms to the testator.

And even if one could find such witnesses, they would probably be quite close to the testator - and excluding them from being beneficiaries would be liable to add them to the list of disaffected parties...

Gengulphus

[JonE]

It would mean them having to be involved in the discussions between the testator and the solicitor, or at the very least to have an independent meeting with the testator to satisfy themselves that he was compos mentis, not acting under undue influence and that he had properly taken into account the claims of potential beneficiaries to his estate.

If the drafting solicitor is not a witness (and she wasn't in the case of OP's in-laws' 2006 wills) then yes, the chosen witnesses should be in a position to provide an affidavit that the testator appeared to be of sound mind and not acting under undue influence. That's their value - and isn't that what witnesses are, ideally, supposed to be able to provide anyway? That's what the lay executor and beneficiaries of a will excluding a child would find comforting to have alongside a letter of explanation (which could itself provide some evidence of independence and reason as well as demonstrating that claims of potential beneficiaries had been considered - so the witnesses don't need the 'private' knowledge to be able to speak to that latter aspect). If the witnesses looked sufficiently 'strong' to an excluded individual then that could act as a further deterrent to trouble-making on spurious capacity/influence allegations and matters would be even less likely to reach the stage of affidavits being required.

Please remember that I'm not addressing the general case.

Cheers!

[melonfool]

Going back to what witnesses are for, under Scots Law, the only responsibility of a witness is to witness the testator's signature, so he/she can be anyone. Indeed I have more than once used my next door neighbour. He/she has no responsibility other than to witness me physically signing the Will and he is testifying to that and that only. Is English law different in that regard?

Dod

It's exactly the same. All this stuff is ridiculous.

Mel

[Clitheroekid]

If the drafting solicitor is not a witness (and she wasn't in the case of OP's in-laws' 2006 wills) then yes, the chosen witnesses should be in a position to provide an affidavit that the testator appeared to be of sound mind and not acting under undue influence.

I don't want to labour the point, but this is simply not a realistic proposition in the vast majority of cases.

For a start, lay people are not considered by the courts to be able to judge a testator's capacity, so their opinion of whether or not he was of `sound mind' would be largely irrelevant. Secondly, how would they know whether or not the testator was acting under undue influence unless they conducted a thorough investigation into his circumstances?

As I said in my previous post, this is expecting far more of witnesses than is normal or even reasonable. You are, in effect, requiring them to be professional witnesses, in which case, as I also said, they would need to make proper attendance notes of their findings for use as evidence if needed.

If such a high standard of witnesses was really required (and in 99.9% of cases it isn't) then the appropriate solution would be to arrange for genuinely professional witnesses, such as a solicitor and a doctor to be witnesses. I have done this on a couple of occasions where I had some doubts about capacity, and the witnessing doctor has also signed a separate report to the effect that the testator definitely had capacity.

That's their value - and isn't that what witnesses are, ideally, supposed to be able to provide anyway?

No, it's not. The sole function of a witness is to confirm that the Will was signed properly. They are not remotely expected to provide evidence regarding the mental capacity of the testator or the reasons he made the Will. In fact they don't even need to know that the document they're witnessing is even a Will.

[Dod1010]

Clitheroekid

I understand that you are a practising solicitor and in you final paragraph in your last post you have agreed with my post and Mel's response. If that is the case, most of this thread has been total nonsense, certainly as regards what a witness is for. Can you just confirm that that is the law as you understand it?

Dod

[Gengulphus]

If the drafting solicitor is not a witness (and she wasn't in the case of OP's in-laws' 2006 wills) then yes, the chosen witnesses should be in a position to provide an affidavit that the testator appeared to be of sound mind and not acting under undue influence.

For a start, lay people are not considered by the courts to be able to judge a testator's capacity, so their opinion of whether or not he was of `sound mind' would be largely irrelevant. Secondly, how would they know whether or not the testator was acting under undue influence unless they conducted a thorough investigation into his circumstances?

Isn't the key point that in crude cases, a lay witness will be able to give evidence that the will was not properly signed? E.g. if a lay witness sees the testator sign the will when only the lay witness and the testator were present (no second witness), or if they see a confused-looking testator being browbeaten by someone repeatedly saying "Come on, Mum, you must sign this" until they eventually sign, they would seem to me to be perfectly competent to bear witness to those facts (provided they remember the signing at all, of course).

I.e. they may not be considered by the courts to be able to judge that everything was in order, but they may be able to bear witness to facts that indicate or strongly suggest that particular points were not in order. It won't by any means catch every instance of things being done incorrectly, but it will catch some...

And in answer to Dod1010's point, that means that their testimony is not necessarily limited to "Yes, I saw the testator physically sign the will": at least the obvious circumstances of the signing are also stuff they may be able to bear witness to, and I think are expected to if they remember them and are asked.

Gengulphus

[JonE]

That's their value - and isn't that what witnesses are, ideally, supposed to be able to provide anyway?

No, it's not. The sole function of a witness is to confirm that the Will was signed properly. They are not remotely expected to provide evidence regarding the mental capacity of the testator or the reasons he made the Will.

I've never suggested witnesses should know why a will was made in a certain fashion or know anything of the contents but I have been advised that witnesses could be called upon to confirm that they believed the testator signed solely of his own volition and that he appeared to be of sound mind. Witnesses were carefully chosen for the will that prompted the discussion (one witness being the drafting solicitor) and it was a source of comfort to the testator and beneficiary that 'sound' witnesses plus, of course, proper observance of the relevant rule-set and procedures in full, provided further armour against the anticipated (and realised) contest by an excluded party.

Based on that, I had thought that OP's in-laws would have been given similar advice when making the earlier wills so would have selected (and remembered selecting) witnesses for the later wills with care given that they obviously hadn't used the drafting solicitor.

I now accept that the casual attitude to witness selection for wills expressed on this board is not as reckless as I'd been given to believe. I have a similarly relaxed attitude for most witnessing of signatures (excepting one particular PoA donated to me) but - if it were possibly subject to challenge - would have treated witness selection for my will rather more carefully in the belief that it's better to have sound witnesses available than not be able to turn up any witness at all (for whatever reason). So, OK, I now accept that it makes no odds in "the vast majority" or "99.9%" of cases and that OP's in-laws' circumstances don't suggest their wills could have been in the tiny minority. Fair enough.

If witnessing wills is as trivial as, say, witnessing signatures on an AST (assuming that's regarded by all as trivial) then I'd again ask why not scrap or simplify the rule-set & procedures? Why two witnesses required by law in E&W when one is acceptable in Scotland? Would it not be helpful (with little or no down-side) if it was simpler for a will to be signed 'properly'?

Cheers!

[Lootman]

if they see a confused-looking testator being browbeaten by someone repeatedly saying "Come on, Mum, you must sign this" until they eventually sign, they would seem to me to be perfectly competent to bear witness to those facts (provided they remember the signing at all, of course).

Yes, that's how I see it. Having witnessed a number of signings, I'd say that normally these are people i know, who appear to be acting rationally, and I will witness without worry, and probably not remember much about it.

But if something odd or devious is going on, like coercion, drunkenness, or someone holding their hand over a key part of the document while inviting me to sign my name, I will remember that.

Or I might just decide to not witness it at all.

[Lootman]

If witnessing wills is as trivial as, say, witnessing signatures on an AST . .

Although AST's can be witnessed, there is no requirement for them to be witnessed.

[Dod1010]

What is or are ASTs?

On the general subject of witnesses, if I were trying to browbeat a testator to sign something which he/she may not fully understand or have read, I am quite sure that I would find a compliant witness to the signature. Indeed if a testator was being brow beaten, unduly influenced or whatever, if I were an honest and upright potential witness I do not think I would have anything to do with witnessing the signature, because I would then be almost aiding and abetting. In general though the witness to a signature (as someone has said only one is required in Scotland) is doing just that, witnessing a signature, and does not know what the document contains, or need enquire as to the state of mind of the signatory. The only question he might be asked in the future is to confirm he witnessed the actual signing but even that must be very rare as he is testifying to that on the document.

I am no lawyer but that is what I have always understood and certainly follows any instructions I have ever been given in signing a Will.

Actually for a Power of Attorney in Scotland anyway, it was necessary for me to attend the lawyer's office so as to enable him to assure himself that I was of sound mind, although that may have been for what we call an Advance Directive re non resuscitation in the event. Having assured himself he then witnessed my signature. In other words, any old witness was not acceptable for that case. As in England, it needs to be registered with a public body so they may have tightened up the requirement for a witness.

Dod

[melonfool]

AST = assured shorthold tenancy.

Mel