In England and Wales section 9 of the Wills Act 1837 (the 1837 Act), so far as material, provides:
‘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
(c) 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.’
In Northern Ireland equivalent provisions apply under the Wills and Administration Proceedings (Northern Ireland) Order 1994.
Clearly, attestation by two witnesses present at the same time, while maintaining personal separation, is a particular difficulty, especially if the testator is in isolation and unable to ask independent witnesses into the room.
Witnessing a will from the next room or through a window might be challenged as not being formally in the testator's presence, although some very old case law (Casson v Dade 1781) suggests it may be sufficient to have two witnesses who are in line of sight though not in the same room.
Scotland
The Requirements of Writing (Scotland) Act 1995 provides for the requirements for a will to be formally valid, that is, self-proving. If a will is self-proving, there is no need to go to court to prove it is the person’s will it claims to be. The requirements are as follows:
- The will must be signed by the testator at the end.
- The testator must also sign each separate sheet (if there are multiple pages).
- The will must be witnessed by at least one other person. This person must know the person making the will, be over 16 years of age and be of a sound mind.
- The will must either be signed in the presence of the witness or the signature acknowledged by witness.
- The document must provide the name and address of the witness.
If a will is not self-proving, it may still be valid (for example, if it is in writing and signed by the testator but not witnessed) but it will need to be proven (by affidavit evidence) in the court during the confirmation process that the testator did sign the document and had capacity and testamentary intention.
