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Presence

Also known as: Physical Presence, Witnessing Presence

Definition

Presence is the legal requirement that the testator and both witnesses must be physically in the same location at the same time, able to see each other during the will signing process.

This requirement is a fundamental safeguard against fraud and undue influence, ensuring witnesses can verify the testator's identity and observe their capacity to make a will.

What Does Presence Mean?

Under Section 9 of the Wills Act 1837, presence means both witnesses must be physically in the same location when the testator signs the will or acknowledges their existing signature. Courts have interpreted this to require not just physical proximity but also conscious awareness of the witnessing event and a clear line of sight between all parties. The Law Commission confirmed in 2017 that "presence" for Wills Act purposes means physical presence, decided with reference to whether parties are in the same room and whether there is a line of sight.

The witnessing process requires both witnesses to be present simultaneously when you sign your will. Each witness then signs in your presence—they can sign one after the other, but you must be able to see each witness sign. Importantly, witnesses don't need to be present when each other signs, only when you sign. For example, Sarah signs her will at her dining table with both witnesses—her neighbour Emma and friend James—seated across from her watching. After Sarah finishes signing, Emma signs while Sarah watches, then James signs while Sarah watches. This satisfies the presence requirement because all three people remained together throughout the process with clear line of sight.

Courts have shown some flexibility in what constitutes "line of sight" while maintaining the core requirement. Historical case law like Casson v Dade (1781) established that witnessing through windows or glass doors can be valid if there's continuous, unobstructed visual contact. In Re Clarke (2011), a witness in an adjacent room was held to have proper presence because they had a clear line of sight through open glass doors. However, physical barriers without line of sight—such as closed doors, solid walls, or witnesses in completely separate rooms—invalidate the will under Section 9.

Between 31 January 2020 and 31 January 2024, Section 9 was temporarily amended to include "presence by means of videoconference or other visual transmission" due to COVID-19. This provision expired on 31 January 2024 and was not extended. Physical presence in the same room is now once again required—video witnessing is no longer legally valid. Wills executed with video witnesses during the temporary period (2020-2024) remain valid, but any will made after 31 January 2024 must use physical presence. Many people remain confused about this change, incorrectly believing video witnessing is still permitted.

Common Questions

"Can my witnesses sign my will in different rooms or at different times?" No. Both witnesses must be physically present in the same room at the same time when you sign your will or acknowledge your signature. Each witness must then sign in your presence. If witnesses sign in different rooms or at different times, your will is invalid under the Wills Act 1837 and will be rejected at probate.

"Can I still use video calls to witness my will like during COVID?" No. Remote witnessing via video was only temporarily permitted between 31 January 2020 and 31 January 2024. That provision has expired and was not extended. All wills must now be witnessed with physical presence—you and both witnesses in the same room at the same time. Video witnessing is no longer legally valid.

"Do my witnesses need to be right next to me, or can they be across the room?" Witnesses can be across the room as long as they have a clear, unobstructed line of sight to see you sign your will. Courts have even accepted witnessing through windows or glass doors in some cases. The key requirement is that witnesses can actually observe the signing, not just be in general proximity.

Common Misconceptions

Myth: "I can have my witnesses sign my will at different times as long as it's the same day—one in the morning and one in the afternoon."

Reality: Both witnesses must be present at the same time when you sign or acknowledge your signature. All signatures must be completed in a single, uninterrupted session. Having witnesses sign at different times—even on the same day—renders the will invalid under Section 9 of the Wills Act 1837. The phrase "same time" means simultaneously present, not merely the same calendar day.

Myth: "Video witnessing is still allowed in the UK, so I can have my witnesses watch me sign over Zoom or FaceTime."

Reality: Remote witnessing via video was only temporarily permitted from 31 January 2020 to 31 January 2024 due to COVID-19. This provision expired on 31 January 2024 and was not extended. Since 1 February 2024, all wills must be witnessed with physical presence—you and both witnesses in the same room. Video witnessing is no longer legally valid for wills made after this date.

Understanding presence connects to these related concepts:

  • Witness: Witnesses are the people who must be in the testator's presence during will signing to attest that they observed the execution.
  • Execution: Presence is one critical component of the overall execution process that makes a will legally valid.
  • Remote Witnessing: The temporary COVID-19 provision that allowed video presence until 31 January 2024, now expired.
  • Attestation: What witnesses do while in the testator's presence—signing to confirm what they observed.
  • Wills Act 1837: The foundational legislation that establishes the presence requirement under Section 9.
  • How to Execute Your Will Correctly: Understanding presence requirements is essential for properly executing your will with valid witnesses.
  • Common Will Mistakes That Invalidate Your Will: Improper presence—such as witnesses in different rooms or signing at different times—is one of the most common execution errors.
  • What Makes a Will Valid in the UK?: Presence during witnessing is a fundamental legal requirement for will validity under English and Welsh law.
  • Choosing the Right Witnesses for Your Will: Once you understand who can be a witness, knowing the presence requirements ensures proper execution.

Need Help with Your Will?

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Legal Disclaimer: This glossary entry provides general information about UK legal terminology and does not constitute legal advice. This information is current as of 21 October 2025. The law regarding remote witnessing changed on 31 January 2024 when temporary video witnessing provisions expired. This guidance applies to England and Wales under the Wills Act 1837. Different rules may apply in Scotland and Northern Ireland. For advice specific to your situation, consult a qualified solicitor.