Whilst s17 Wills Act 1837 does not prevent an executor from being a witness, we all know that a witness cannot be a beneficiary.
What if the witness is the sole Executor, one of the only 2 witnesses, and the witness prepared the home-made (WHSmith type) Will, but the witness is also a registered Trustee (heavily involved in day to day running) of a small charity which is the sole beneficiary of the home-made Will? Is this too close and qualifies as a “beneficiary” to invalidate the Will.
I have no qualms about the honesty of the witness nor any indication of undue influence.
There is no prior Will and adult children of the divorcee testatrix would otherwise inherit under intestacy.
If they were a trustee of the charity when the will was made, I would feel decidedly uncomfortable and would look to advice from Chancery counsel before proceeding.
If the testator is still alive, I suggest they be encouraged to make a new will, with independent witnesses.
If they have already died, the quandary is whether to canvass those persons entitled on intestacy to see if they are happy to accept the terms of the will (and maybe need to enter into a variation) or to take counsel’s opinion first.
Whilst I accept that one might be challenged for incurring expense, I generally favour knowing the correct legal position before initiating any discussion.
Paul Saunders FCIB TEP
Independent Trust Consultant
Providing support and advice to fellow professionals