Will Witness Rules: What Is Changing

Why witness rules matter

When you make a will, you need two witnesses to watch you sign it. Those witnesses then sign the will themselves. This is one of the oldest requirements in English law, dating back to the Wills Act 1837, and it exists for a good reason: witnesses are there to confirm that you signed your will voluntarily and that the document is genuine.

But there is an important catch. If one of your witnesses is also a beneficiary under your will -- or the spouse or civil partner of a beneficiary -- the gift to that person is automatically void. The will itself remains valid, but the gift is lost. The witness (or their spouse or civil partner) gets nothing.

This rule is designed to prevent conflicts of interest. A witness is supposed to be impartial. If they stand to benefit from the will, their objectivity is compromised, and the risk of fraud or undue influence increases.

The gap in the current law

There is a significant gap in the current rules. The Wills Act 1837 only catches gifts to a witness's spouse or civil partner. It does not catch gifts to a witness's cohabitant -- the person they live with as if they were married or in a civil partnership.

This matters because the proportion of adults who cohabit without marrying or entering a civil partnership has grown substantially. In 2022, approximately 6.8 million people in England and Wales were cohabiting outside of marriage or civil partnership. Yet under the current law, a cohabitant of a witness can receive a gift in the will that their partner has witnessed, with no questions asked.

The same gap exists for people who sign a will on the testator's behalf. Under section 9(1)(a) of the Wills Act 1837, a will can be signed by another person in the testator's presence and under their direction -- for example, if the testator is physically unable to sign. Currently, there is no restriction on that person being a beneficiary. A person could sign the will on your behalf and also be the main beneficiary, which creates an obvious risk of abuse.

What the draft Bill proposes

In Modernising Wills Law (Law Com No 419), published in May 2025, the Law Commission recommends three changes to address these gaps. The proposals are reflected in clauses 12 and 13 of the draft Wills Bill.

Extending the rule to those who sign on the testator's behalf

The draft Bill would treat a person who signs a will on the testator's behalf in the same way as a witness. Any gift to that person -- or to their spouse, civil partner, or cohabitant -- would be void. The will itself would remain valid, but the gift would fail.

The Law Commission found that there is "no good justification for the difference in position between witnesses and those signing on behalf of a testator." The risk of fraud is, if anything, greater when someone signs the will itself. As one senior judge noted in 2012, "it is plainly undesirable that beneficiaries should be permitted to execute a will in their own favour in any capacity."

Extending the rule to cohabitants

The draft Bill would extend the invalidity rule so that a gift to the cohabitant of a witness -- or the cohabitant of a person who signs on the testator's behalf -- would also be void. The definition of "cohabitant" draws on Part 4 of the Family Law Act 1996: two persons who are neither married to each other nor civil partners of each other but are living together as if they were a married couple or civil partners. Importantly, there would be no requirement for the couple to have cohabited for a minimum period of time.

The Law Commission decided not to extend the rule to other family members of a witness (such as parents, siblings, or children). While some consultees argued for a wider rule, the Commission concluded that this would make it too difficult for testators to find suitable witnesses, particularly elderly or housebound people making homemade wills.

A new power to "save" gifts that would otherwise be void

Perhaps the most significant change is the introduction of a saving power in clause 13 of the draft Bill. Under the current law, if a beneficiary witnesses a will, the gift is void -- full stop. There is no mechanism to rescue it, even if the mistake was entirely innocent.

The draft Bill would give the court power to save a gift that would otherwise be void under the invalidity rule. The court could make an order disapplying the rule if it is satisfied that doing so is just and reasonable, having regard to the conduct of the relevant person in relation to the making of the will and, if relevant, proving the will after the testator's death.

This means that if, for example, an elderly testator innocently asks a long-standing friend to witness the will without realising that the friend is also a beneficiary, the friend could apply to the court to have the gift upheld. The court would consider whether there was any impropriety, fraud, or undue influence. If the witness acted honestly and independently, the gift could be saved.

This saving power is separate from the general dispensing power proposed for informal wills. The dispensing power applies where the will itself is invalid (for example, because it was not properly witnessed). The saving power applies where the will is valid but a particular gift within it has been rendered void by the invalidity rule.

Practical guidance on choosing witnesses

Whether or not the draft Bill becomes law, the safest approach is the same: choose witnesses who have no connection to anyone named in your will.

Good witnesses are people who:

• Are not named as beneficiaries in your will
• Are not the spouse, civil partner, or cohabitant of any beneficiary
• Are not signing the will on your behalf
• Are over 18 and have the mental capacity to understand what they are witnessing

Neighbours, colleagues, or professional advisers (such as a solicitor's staff) are often good choices. The key principle is independence -- your witnesses should have nothing to gain from your will.

It is also worth noting that witnesses do not need to read your will or know what is in it. They simply need to see you sign it (or acknowledge your signature), and then sign the will themselves.

What should you do now?

The draft Wills Bill has not yet been introduced to Parliament, and there is no guarantee it will be enacted in its current form. Until it becomes law, the current rules under the Wills Act 1837 apply. That means the invalidity rule covers spouses and civil partners of witnesses, but not cohabitants, and there is no saving power available if a gift is accidentally voided.

The practical takeaway is straightforward: choose your witnesses carefully. Make sure they are genuinely independent -- not your beneficiaries, not their partners (married or otherwise), and not anyone who is signing the will on your behalf.

If you are making a will with GetWill, our process is designed to guide you through these requirements. We help you understand who can and cannot witness your will, so that your wishes are carried out exactly as you intend.