In the third of a series of articles about the circumstances when a new Will should be made, Solicitor Vanessa Swales looks at what effect the death of a witness or executor has on a Will.
Who can witness a Will or be an executor?
Any adult who has mental capacity and is not blind can witness your Will, as long as they are not a beneficiary, or married to a beneficiary.
An executor, by contrast, can be a beneficiary, though they must be over the age of 18. In fact it is very common for someone’s spouse to be made both beneficiary and executor.
It is usually good practice to appoint more than one executor just in case an executor dies before you. Up to four executors can be named in all and substitutes can also be appointed.
What happens if a witness dies before me?
If a witness dies before you (or ‘predeceases’ as lawyers refer to it) then it won’t invalidate your Will, but it can lead to complications.
When applying for probate it is possible that the executor could be asked to provide proof that a witness has died and that their signature is valid.
This can be tricky, so if a witness dies you may wish to either make a new Will or alternatively ask the surviving witness to swear an affidavit confirming that both witnesses were present when the Will was signed.
What happens if an executor dies before me?
Where an executor predeceases it is important to consider if there are any other living executors.
If the Will names another executor and they are still living then it will be possible for that executor to apply for probate.
However if all named executors have died then court rules are applied to determine who the executor shall be, such as a beneficiary under the Will.
So, while the death of an executor doesn’t invalidate a Will, you may wish to review your Will and make a new one if you want to have complete control over who the executor will be.
How we can help
It is always advisable to keep your Will under review. Where an executor or witness predeceases you then we are happy to discuss the options and where required draft a new Will, or alternatively a short codicil to your existing Will.
Call us on 0808 139 1606 or email us at [email protected]