Independence of Will witness

[Tumbleturn68]

Hi,

If a Will witness (non-family) is not a beneficiary of the Will they witness but has a financial interest in the main beneficiary of that Will, does this represent a conflict of interest such that they should not be the Will witness?

For instance, if a long established Will was changed drastically, by a terminally ill and frail testator in hospital, days after receiving a terminal diagnosis just weeks before his death, to favour one beneficiary over several others, with that main beneficiary arranging a solicitor visit and being bedside when the testator gave his new instructions, with both the main beneficiary and the Will witness remaining present throughout the entire Will signing meeting, would it:

i). be unusual for the main beneficiary to remain present throughout both Will meetings?

ii). be unusual for the Will witness to remain present throughout the signing meeting and to hear/read the contents of the Will?

iii). be a conflict if the Will witness, as soon as the Will was signed, then questioned the solicitor about potential probate issues affecting the main beneficiary?

iv). be a conflict if the Will witness then offered financial and probate advice to the main beneficiary regarding the early transfer of estate assets prior to the testator’s death?

v). be a conflict if the Will witness arranged financial support for the main beneficiary following the testator’s death and prior to a validity challenge to the Will?

vi). be a conflict if the Will witness was to benefit, either directly or indirectly, from the recently made Will of the main beneficiary to the first Will?

vii). be a conflict if that Will witness was a previous client of the Will solicitor’s office who took the first Will?

viii). Would any such conflicts be sufficient to cast doubt on the credibility of testimony offered by that Will witness within a contentious probate case?

Many thanks.

[atticus]

What is the nature of the alleged financial interest? Bank manager?

[PallasAthena]

I don't know if this is relevant to the financial interest you are referring to but the Wills Act 1837 section 15 says that the spouse or civil partner of a Witness cannot be a beneficiary of the Will (and nor, of course, can the Witness themself). If they are a spouse/civil partner that wouldn't necessarily invalidate the Will but more likely make their legacy void and they could not inherit anything.

[Tumbleturn68]

What is the nature of the alleged financial interest? Bank manager?

The interest is hidden. The beneficiary is a vulnerable person and of limited means until they inherit. Once they inherit they are very wealthy. The beneficiary is befriended and financially supported by the Will witness until he inherits. The Will witness then stands to benefit from the beneficiary, including via the beneficiary’s newly made Will.

[atticus]

It sounds as if you will need to be gathering evidence of undue influence/coercion in relation to the making of the Will.

[Tumbleturn68]

It sounds as if you will need to be gathering evidence of undue influence/coercion in relation to the making of the Will.

Indeed. Would the actions of such a Will witness, outlined in i). to vii). above, indicate unusual behaviour for a Will witness to undertake within the affairs of this family? Would they merit further investigation within a contentious probate situation, even though the Will witness’s underlying financial interest continues to be hidden and denied? Would they be unusual things for a Will witness to do and do they represent a clear conflict of interest for a truly independent Will witness?

[atticus]

These things may be indicative, but you need to gather as much evidence as you can.

What is your position in all this?

[Tumbleturn68]

These things may be indicative, but you need to gather as much evidence as you can.

What is your position in all this?

I’m enquiring for a concerned family member. What sort of evidence would be applicable and/or most important to focus on? Only that directly relating to the testator and main beneficiary or should the actions of the Will witness and their involvement with the main beneficiary receive closer attention?

To my limited knowledge points i). to vii). above all appear problematic in such a late and drastic Will change. Would any or all of these points be considered a significant departure from best practice by the Will taking solicitor? If so, which is the gravest departure? Is it worth pursuing the Will witness involvement further or does the fact they are not themselves named as a beneficiary mean their behaviour would not be a means to challenge the Will?

Many thanks.

[PallasAthena]

Undue influence in Wills is discussd online on more Solicitors' websites that just about anything else so worth you searching 'Wills Undue Influence England' and read up on their advice to get a range of perspectives on this.

Although you frequently mention Witnesses needing to be "independent" the Wills Act itself does not specify this although it is a standard good practice recommendation nowadays.

[atticus]

Evidence of what happened, how they happened, who did what.