Witness to a Will under 18

I have come across a Will which was made in 1994 by a financial advisor. It was signed by the testator and the financial advisor acted as witness number 1. Witness number 2 was his son (also now a financial advisor - but that is immaterial). The son was 17 years and 6 months old when witnessing the Will.

Is the Will still valid? and why?

s9 Wills Act 1837 only refers to witnesses being present not that they must be adults. There are various blog posts from firms like Hugh James and in the Gazette which state that the witnesses need to be over 18 but I can’t actually find any case law to back this up. Somewhere in the back of my mind is something saying that it comes down to maturity rather than age?

I am just going to update the Will with him anyway and get it signed by two independent witnesses who are both over 18 but I am now curious.

Kind regards

Chris Shaw
Graysons Solicitors

Hi Chris

HMRC states:

“For your will to be legally valid, you must:
• sign it in the presence of 2 witnesses who are both over 18”

Francesca Gandolfi
Canada Life

Arguably, minors do not have the required mental capacity to witness a Will (as they ought to understand the process of witnessing and be able to give evidence if required). However, as far as I am aware, there is nothing to stop a minor from acting as a witness. Also, s14 Wills Act 1837 can help save the Will even if a witness turned out to be a minor at the time.

Hauke Harrack
Hewitsons

I don’t think that there is any general bar to a witness under 18. As you say, there is nothing about it in s. 9 of the Wills Act.

Section 14 provides: “If any person who shall attest the execution of a will shall at the time of the execution thereof or at any time afterwards be incompetent to be admitted a witness to prove the execution thereof, such will shall not on that account be invalid.”

Williams, Mortimer & Sunnucks suggests that s. 14 refers to persons not “competent” as understood in 1837. The 1838 edition of Philips on Evidence describes a test for competence in children based on understanding. It also says that although there was once an absolute bar on children under the age of 9 giving evidence, by 1838 it had gone.

So, even if a child does prove to be incompetent at the time they witness the will, it looks like it’s still valid.

Josh Lewison
Radcliffe Chambers

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Hi Chris,

There is no requirement to be an adult, a child can be a witness - ought to be avoided if they are required to give an account of the signing. I have no case law, this is stated in my STEP Adv Will Writers manual.

Another falsehood I see on internet sources is the witness needs to hold mental competence, it is not required Estate of Gibson [1949] 2 ALL ER 90.

Richard Bishop
PFEP

There is no requirement that a witness be over the age of 18 but they must be sufficiently old to understand what is being done and what their role is.

Paul Davies
Clarke Willmott LLP

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Halsbury’s Laws* seems to suggest that the same considerations apply as in civil proceedings, ie, that a child is only disqualified from being a witness if he/she is of such tender years that he/she has neither sufficient intelligence to testify nor a proper appreciation of the duty of speaking the truth (R v Brasier, 1779) 1 Leach 199.

*Vol 50, para 371 - refers in turn to Vol 17(1), para 951

Ben Leach
Molesworths Bright Clegg

As far as I am aware, there is no minimum age requirement but obviously common sense must be applied.

A minor can witness a will, but not a young child since they will not be capable of understanding the importance of witnessing the will’s execution. The witness must have the requisite mental capacity ( and not be be blind).

The witnesses may be called to give evidence after death and should therefore be of a suitable age and competent to give evidence. The point of having witnesses is so that they can speak after the testator’s death if queries arise.

S9 Wills act 1837 and its substitution from the Administration of Justice Act 1982.

No mention of age.

Age 17 ½ should be fine.

For Wills, in reference to age 18, it is only that Wills made by a person under the age of 18 are not valid ( apart from the armed forces / sailor at sea exemption Wills (Soldiers and Sailors) Act, 1918.)

S. 9 substituted by Administration of Justice Act 1982 (c. 53, SIF 116:5), ss. 17 , 73(6)

17 Relaxation of formal requirements for making wills.

The following section shall be substituted for section 9 of the Wills Act 1837—

9 Signing and attestation of wills.

No will shall be valid unless—

(a)it is in writing, and signed by the testator, or by some other person in his presence and by his direction; and

(b)it appears that the testator intended by his signature to give effect to the will; and

©the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and

(d)each witness either—

(i)attests and signs the will; or

(ii)acknowledges his signature,

in the presence of the testator (but not necessarily in the presence of any other witness),

but no form of attestation shall be necessary.”.

Andre Davidson
Finantium

Thank you all for the replies. We have continued the discussion in the office and have come up with similar conclusions and it appears that the Will is valid.

However, I have spoken to the financial advisor this morning and it transpires that the signature of the second witness was, in fact, that of his ex-wife who was definitely over 18. They have the same initial and had not written their names just addresses.

It is interesting that the government website declares that the witness must be over 18 when this is clearly not what the law actually says although it does make it easier to understand for the lay person, I suppose.

Chris Shaw
Graysons Solicitors

To the best of my knowledge the only requirement is for the witnesses to be present and to be blessed with sufficient eyesight to see the Testator sign the will. The age of the witness is not material as long as he or she is capable of understanding the process involved and, more importantly, being capable of giving a coherent witness statement at a later date.

I have never used a witness under 18 and would suggest it is probably not the best idea but, then again, I have met quite a few adults I would not have wished to rely on for a statement to the Court.

Mrs J E Bennell
RLK SOLICITORS LTD

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My somewhat old STEP manuals quote that while an adult witness is preferable, in Smith v Thompson (1931) a 16 year old was accepted as a witness, and that it is the maturity of the witness that is important, and not their age.

Duncan McGowan
Stevens & Bolton

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Many thanks to Chris Shaw for raising this point, and to all the contributors for responding. I will endeavour to make sure there is a clearer treatment of this point in the next edition of Theobald on Wills, which will be in production next year.

Alexander Learmonth
New Square Chambers

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This was an interesting thread.
When I was 16 I used to witness Wills in the solicitors office where I worked.
I was competent enough to be at work so also for witnessing a Will.

Maria Goodacre
Bells Solicitors Ltd

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