Currently, if someone is a witness to a Will and also receives a gift under that Will, then that gift is void (though the remainder of the Will is unaffected). The same rule applies if it is the witness’s spouse or civil partner receiving the gift. However, under the current law this does not apply to partners who are simply cohabiting with the witness.
Preventing conflicts of interest
Under the reforms, a gift in a Will would be automatically void if it is left to a person who lives with one of the witnesses, even if they are not married or in a civil partnership.
This would bring the rules in line with the reality of modern relationships, where many couples live together without being married or in a civil partnership.
The proposals would also extend the current rules to apply to gifts made to someone who signs the Will on behalf of the person making it (for example, if they are unable to sign themselves), and that person’s spouse, civil partner, or cohabitant.
Will there be any exceptions?
As things stand, if someone witnesses a Will and also receives a gift in that Will (or if their spouse or civil partner does), the law says that gift will not stand. It is automatically cancelled, even if the person writing the Will genuinely wanted them to have it.
The Law Commission wants to give the courts the power to override this rule in exceptional circumstances, but this is not something to rely on – nobody would want the stress and expense of going to court to try to save a gift like this and often the value of the gift would be too small to make such an application worthwhile. So even though the proposal would allow for some flexibility in exceptional circumstances to help preserve a person’s wishes where appropriate, that would be a remedy of last resort.
What this means in practice
If these changes are adopted, it will be even more important to take care when choosing witnesses to a Will. Using close friends or household members – especially if their partners are named in the Will - could risk invalidating parts of it. There could also be uncertainty in some cases as to whether a given relationship should be classed as a cohabiting one. It is clear whether two people are married and, if so, when they married but what if two university housemates form a romantic relationship at some point – how would you prove whether the relationship had crossed a given threshold at the time a Will was signed?
Whether or not these proposals are adopted, the safest course of action remains to have a professionally drafted Will, properly witnessed by people who have no interest in the estate.
How TWM can help
Our specialist Private Client team can advise on best practice when drafting a Will, and support you if you are involved in or concerned about a challenge to a Will.
If you suspect that a Will may have been improperly witnessed or influenced by someone close to a witness, we can help you understand your options and take steps to protect your position.
To discuss your requirements, please get in touch with our Private Client team for an initial, no-obligation consultation.