A witness is a person who observes the execution of a legal instrument, such as a will. Many instruments, like wills, require witnesses in order to be valid.
To be a witness to a will, a person must be competent, must observe the testator signing the will, and must sign the will as a witness in the testator’s presence and at the testator’s request or direction.1 A minimum of two witnesses are required for any will to be valid.
Technically speaking, a person is “competent” to be a witness to a will unless the person is of unsound mind or intoxicated at the time time of witnessing the will, or appears to be incapable of receiving or communicating just impressions of facts.2 However, a witness to a will should not merely be competent. A testator should select witnesses who are also at least 18 years old and who can read and speak the English language. It is not required or even important that the witnesses know the testator personally; they can be complete strangers.
Furthermore, a witness to a will should not be a person who may receive a gift under the will. Such a person would be considered an “interested witness.” A will is not invalid simply because one of its required witnesses was an interested witness; however, any gifts in the will to the interested witness will be presumed to have been procured through duress, menace, fraud, or undue influence, and unless the interested witness can provide sufficient evidence to rebut this presumption, the witness will only be able to receive what the witness would have received under the laws of descent and distribution in intestacy had the testator died without a will.3