Examining the role of witnesses in wills : evaluating the necessity, benefits and challenges

Abstract

The Notarial profession involves the role of drafting of public deeds, which public deeds include the drafting of wills. These wills remain confidential up until the testator's death, and upon the presentation of a death certificate, a copy of the relative will may be provided by the notary who published the will, by the keeper of the notarial acts of that specific notary or else by the Notarial Archives. The death certificate confirms the testator’s death and allows the notary or book keeper to release a true copy of that public will. A will is a significant legal document in which the testators’ wishes regarding the distribution of their assets, estate, and lifetime earnings are recorded and the notary is responsible for ensuring that the will accurately reflects these wishes. Before finalising the will, the notary must read it out loud to the testator, explain its contents, and confirm that the testator fully understands and agrees with the contents of such will. Failure to fulfill these duties, such as not explaining or reading the will in the presence of witnesses, can result in the will being declared annullable. However, the testator now has the option to choose whether to have witnesses present. If the testator decides against it, and the notary includes a declaration to that effect in the will, the will remains legally valid and will not be subject to annulment. In the context of wills, witnesses play a crucial role in ensuring the validity and authenticity of the document. Most legal systems require that a will be signed in the presence of two or more witnesses (in Malta, two witnesses, however now their is a choice), who must attest to the fact that the testator was of sound mind and acting voluntarily. These witnesses safeguard against fraud, undue influence, and forgery, thereby upholding the integrity of the testator’s wishes. However, challenges arise when witness credibility is questioned, especially if the witnesses have a personal interest in the will, raising legal and evidentiary concerns. Before the enactment of Act LI of 2021, the presence of two witnesses was mandatory for the publication of a public will and in the case of acts of delivery of secret wills. While this legal notice amended the Notarial Profession and Notarial Archives Act, it did not amend the Civil Code of Malta. The amended law in Chapter 55 of the Laws of Malta presently reads as follows “in the case of public wills and in the case of acts of delivery of secret wills, the notary shall in all cases inform and explain to the testator about [his] right to have two witnesses present”. Henceforth, presently the decision to include two witnesses in the will rests solely with the testator’s wishes. Nevertheless, the notary is obliged to inform the testator about his right to have two witnesses present. If the testator declines to have these witnesses present, the notary must explicitly state in the will itself, by means of a declaration that he has informed the testator of this right. This is also done in the act of delivery of secret wills. Consequently, there is ambiguity between the two Maltese laws regarding which law should prevail. The Civil Code requires the presence of two witnesses for a will (however, whilst still making reference to the Notarial Profession and Notarial Archives Act provisions) whereas the Notarial Profession and Archives Act does not specify this requirement, but requires informing the testator of his right to have these two witnesses present, leading to uncertainty for notaries on which legal provision to adhere to. In this paper, a doctrinal research methodology is employed to examine the role of witnesses in wills, focusing on their necessity, benefits and challenges. This approach involves analysing the legal provisions, dissecting the testamentary dispositions contained in wills (whilst keeping the wills secret, to protect the testator’s interests), and also making reference to case law. This methodology aims to critically assess the practical and legal implications of witnesses in safeguarding the testator’s intentions while identifying potential challenges, such as conflicts of interest or issues with witness credibility. The primary objective of this paper is to analyse the legal provisions concerning the role of witnesses in wills, their relevance in modern times, and potential areas for legal reform. It will also explore the advantages of requiring two witnesses, both for the benefit of the testator and the notary, while also addressing the potential challenges that may arise for both parties when witnesses are present. The paper aims to provide a balanced discussion of the practical and legal implications of witness requirements in the execution of wills.