How to Challenge a Will for Lack of Witnesses

A will must meet strict legal formalities to be valid in England and Wales. One of the most important requirements is proper witnessing under the Wills Act 1837. If a will was not witnessed correctly - or if there are doubts about who witnessed it - it may be open to challenge on the basis of lack of valid execution. This article explains what proper witnessing involves, the legal implications when requirements are not met, how to challenge a will for lack of witnesses, the procedural steps involved, relevant time limits, potential outcomes, and practical risks.

Why Witnessing Matters

Wills are highly sensitive legal documents that govern the distribution of a person's estate after death. The law imposes formal requirements to prevent fraud, coercion and mistakes. One of the core formalities is that the testator's signature must be witnessed by at least two independent witnesses who are present at the same time and sign the will in the testator's presence.

If the witnessing requirements are not satisfied, the will may be invalid - meaning it has no legal effect. When that happens, the estate may pass under an earlier valid will, or if none exists, according to the rules of intestacy (default statutory inheritance rules).

What the Law Requires: Formal Conditions for Witnessing

Under section 9 of the Wills Act 1837, for a will to be valid it must:

• be in writing and signed by the testator (or under their direction),
• show that the testator intended the signature to give effect to the will, and
• be signed by the testator in the presence of two or more witnesses who are present at the same time. Each witness must then attest and sign the will in the presence of the testator.

“Presence” usually means physical presence, although temporary statutory amendments during the COVID‑19 pandemic allowed witnessing via videoconference in certain periods.

What Happens if a Will Is Not Properly Witnessed

When a will is not properly witnessed:

• it may be invalid in whole or in part because it fails to meet statutory formalities, and
• gifts in the will may fail, leading the estate to pass under earlier wills or intestacy.

A will that appears valid on its face is presumed to have been properly executed. To overcome that presumption, clear evidence is needed that the witnessing requirements were not fulfilled.

Errors in witnessing can take various forms, including:

• no witnesses were present,
• only one witness signed,
• witnesses signed at a different time than the testator's signature,
• witnesses were not present together, or
• witnesses were beneficiaries or otherwise lacked independence (which can invalidate gifts to them, though may not always invalidate the whole will).

Grounds for Challenging a Will Based on Lack of Witnesses

A challenge to a will for lack of witnesses is typically made on the basis of lack of valid execution or lack of due execution. This means the will did not comply with the formal legal requirements for signing and witnessing.

To be successful, a challenge must show that:

• the will was not signed by the testator in the presence of two qualifying witnesses, or
• the witnesses did not sign in the required manner.

A challenge on these grounds goes to the validity of the will. If the court agrees, it can declare the will invalid.

Step‑by‑Step: How to Challenge a Will for Lack of Witnesses

1. Review the Will's Execution Details

Start by obtaining a copy of the contested will and examine:

• whether the will includes an attestation clause (a statement that witnesses saw the signing),
• the names and contact details of the witnesses, and
• any indications of how the document was signed.

An attestation clause raises a presumption that witnessing was proper, but this can still be challenged with evidence.

2. Gather Evidence About Witnesses

You will need evidence to show that the witnessing requirements were not met. Relevant evidence might include:

• statements from the witnesses themselves if they cannot recall witnessing the signing,
• testimony that a witness was not present when the testator signed,
• proof that only one witness was present or that witnesses signed separately, and
• any documentation that shows irregularities in the execution process.

If witnesses cannot be traced, that may itself support a challenge if it suggests the will was not correctly executed.

3. Assess Other Common Grounds for Challenge

Often a lack of witnesses overlaps with other potential grounds, such as:

• lack of testamentary capacity,
• undue influence or coercion, or
• lack of knowledge and approval.

These can be raised alongside a lack of witnessing claim.

4. Seek Legal Advice Early

Challenging a will requires careful legal analysis, particularly when boundaries between formalities and substantive issues (like capacity) overlap. A solicitor specialising in contentious probate can help assess whether your evidence is sufficient and advise on strategy.

5. Consider Entering a Caveat (If Probate Not Yet Granted)

If probate has not yet been granted, you may apply to the Probate Registry to enter a caveat to prevent probate being issued while you prepare your challenge. A caveat lasts for six months and can usually be extended.

6. Issue Court Proceedings if Necessary

If negotiations or informal enquiries do not resolve the dispute, you or your solicitor must issue a claim in the appropriate court (often the High Court or County Court) setting out:

• the grounds for challenge (e.g. lack of due execution),
• the evidence supporting your position, and
• the orders you are seeking, such as a declaration that the will is invalid.

Time Limits and Practical Constraints

There is no strict statutory deadline for challenging the validity of a will on formal execution grounds, but delay can significantly weaken a case. Collecting witness evidence many years after the will was signed may become difficult as memories fade and witnesses die. Prompt action improves the prospects of success.

If probate has already been granted, challenges remain possible, but the court will take into account that assets may have been distributed and additional complexities arise in recovering those assets.

Costs, Risks and Likely Outcomes

Challenging a will is legally complex and may involve significant costs, including solicitor fees, court fees, and expert evidence costs. If your challenge fails, you may be ordered to pay some of the other parties' costs. The court will assess the strength of the evidence and the seriousness of the formal execution defects.

If successful, the court may:

• declare the entire will invalid,
• allow an earlier valid will to take effect, or
• apply intestacy rules if no earlier valid will exists.

Common Questions from our Readers

Can a will be valid even if a witness later cannot remember signing it?

Yes. If a will contains an attestation clause and there is no compelling evidence to the contrary, the court will generally presume it was executed correctly. Simply forgetting does not automatically make a will invalid.

Does a beneficiary witnessing a will invalidate it?

A beneficiary acting as a witness does not automatically invalidate the whole will, but it generally voids the specific gift to that witness.

Can I challenge only part of a will due to witness issues?

If one clause relates to improper witnessing (for example a codicil), it may be severed or disregarded while the rest of the will remains effective, depending on circumstances.

Key Takeaways

Challenging a will for lack of witnesses in England and Wales centres on whether the formal requirements of the Wills Act 1837 were met. For a will to be valid, it must be signed by the testator in the presence of two independent witnesses who also sign in the testator's presence. If this process was not followed, the will may be invalid and subject to challenge. The process involves gathering evidence about the execution and witnessing of the will, considering entering a caveat if probate is pending, and possibly issuing court proceedings. Prompt action and solid evidence are crucial to your prospects of successfully challenging a will on these grounds.