Can an Executor Witness a Will?

An executor is the person responsible for administering your estate after your death: collecting in assets, paying debts, and distributing what remains to beneficiaries in accordance with your will. A witness is simply someone who observed you sign your will, or heard you acknowledge your signature, and then signed it themselves in your presence.

These two roles are legally distinct, and nothing in section 9 of the Wills Act 1837 prevents the same person from performing both. An executor witnessing the will they are named in is common practice and creates no problem in itself.

Problems arise where the executor witnessing the will is also named as a beneficiary, since section 15 of the Wills Act 1837 voids the gift of any beneficiary who acts as a witness, or whose spouse or civil partner acts as a witness. This is a very common trap because executors are frequently close family members, such as an adult child or spouse, who are also intended to inherit under the will.

For example, if you appoint your daughter as your sole executor and also leave her your entire estate, and she witnesses your will, her inheritance would be void under section 15, even though her appointment as executor would remain entirely unaffected, since executorship is not a beneficial gift for these purposes.

A distinction worth understanding is between ordinary executors, who are not automatically entitled to payment for acting (though the will can authorise reasonable expenses or a specific payment), and professional executors, such as solicitors, whose charging clauses allow them to bill for their time. Whether a charging clause in favour of a witness-executor is affected by section 15 has been considered by the courts in limited circumstances, and the position can be nuanced.

For most ordinary lay executors who are not being left any specific payment or gift beyond reasonable expense reimbursement, witnessing the will they are named in does not create a section 15 problem, because they are not receiving a beneficial gift under the will in the relevant sense. Where a will does include a specific charging or payment clause for an executor, it is worth taking care, or advice, before that same person witnesses the will.

The safest and simplest approach is to keep the roles separated where possible: choose your executors freely, based on who you trust to administer your estate well, and then choose two entirely different, independent people as your witnesses, ideally people with no interest in the will at all, whether as executors or beneficiaries.

If your executor happens to also be a beneficiary, as is very common, simply avoid asking that person to witness the will, and use two other independent adults instead, such as neighbours, friends, or colleagues who are not named anywhere in the document.

Before you sign, go through your will and make a clear list of everyone named as a beneficiary, and cross-reference this against your proposed witnesses and their spouses or civil partners. This includes checking for any executor who is also receiving a specific gift or a share of the residuary estate, since this is the scenario that most commonly catches people out.

Taking a few minutes to check this list carefully before the signing appointment is far cheaper and simpler than discovering a lost inheritance after the testator has died and the will can no longer be corrected.