I recently drafted my will, leaving my estate to my three daughters. My eldest daughter’s son signed as a witness, together with my neighbour. A friend expressed concern about this – but my grandson is officially an adult (he’s 19) and he’s not named in my will. Is this a problem?
Generally speaking, anyone who stands to inherit under your will cannot witness your will. In your case, whether or not your grandson can sign depends on how your will is worded. The challenge is the following: what if your eldest daughter dies before you do? Admittedly this is not something you care to contemplate. But life is unpredictable, and your will should be flexible enough to take unexpected life events into account. One of following could happen:
- Your will may provide that if an heir predeceases you the remaining heirs (your other two daughters) will inherit. In this instance, your grandson would not stand to inherit, and thus his signing as a witness should not pose a problem; or
- Your will may specify a “per stirpes” provision, which means that if an heir predeceases you, that heir’s descendants would inherit. Ie. if your eldest daughter dies before you, your grandson would stand to inherit some or all of your daughter’s share of the inheritance. In this case, your grandson’s signature as a witness can be problematic.
The Administration of Deceased Estates Act makes provision for this scenario: where a witness would in any event have been entitled to inherit under intestate succession the witness can still inherit, but his/her inheritance will be limited to the amount s/he would have inherited under intestate succession, ie. if there was no will in place.
But you should probably consider re-signing your will (using completely independent and unrelated witnesses) if you want to make absolutely certain that the validity of your will is not disputed on this basis.