Section 9 of the Wills Act 1837 provides that no Will shall be valid unless a Will is signed (or acknowledged) by the testator in the presence of two or more independent witnesses present at the same time.

There is no requirement for the witnesses to be privy to the contents of the Will, however they must at the very least acknowledge the testator’s signature by attesting and signing the Will in their presence.

Whilst a seemingly effortless task for a witness, when a dispute arises a witness can be called upon to provide evidence as to the circumstances in which the Will came to be executed. The Court will give considerable weight to the evidence of the witness when determining whether a Will is valid, as often the witnesses are the only two people capable of giving a credible, independent account of the Will execution.

The majority of witnesses are typically content to provide information without argument and without delay, however where a witness is reluctant to do so voluntarily there are legal provisions which empower the Court to summons a witness to give evidence (either before or during the commencement of a probate claim). Once a summons is served, a witness will generally be required to answer specific questions under oath to confirm their recollection of events regarding the Will execution which can then later be used as evidence in the dispute.

An application for a summons can be a quick and inexpensive means of extracting information which can be pivotal to a claim, particularly when used prior to the commencement of a probate claim. Where the parties are aware of the evidence to be relied upon (either in support of a claim or in defence), it may assist the parties with settlement negotiations without the need to incur significant costs of issuing proceedings. 

“Brabners in Lancashire is located at Sceptre Court, Walton Summit. If you would like to discuss anything raised in this article, please give us a ring on 01772 823921, quote “Lancashare” and a member of our team will be happy to assist you. 

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