Witnesses to Wills & Deeds must be Credible
Essentially the only colonial-era British requirement of a witness was that they be “credible.”
England’s 1678 Statute of Frauds required that wills conveying real estate be attested to by three or four “credible witnesses”.1 That same phrase was subsequently written into numerous later statutes, including Virginia’s colonial acts regarding court cases, property conveyances and wills. For instance, a 1710 act required that deeds for land be “proved in Court by the oaths of two or more credible witnesses.”2 And one of Virginia’s first acts after statehood in 1785 was to reaffirm that wills “be attested by two or more credible witnesses.”3
But exactly what “credible” means is counterintuitive enough to require some explanation.
What makes a witness credible?
When the Statute of Frauds was first enacted there was some confusion over what was meant by credibility. In its everyday sense, credible means “believable” but that definition is inadequate for legal purposes because believability by itself does not make testimony valid. Courts applied common law rules of evidence to decide that “credible” meant “competent to testify under common law rules.”
A fundamental rule of common law is that a person with an interest in an action cannot be offered as a witness to it. That is, witnesses must be disinterested parties. Thus a person with a beneficial interest in a will cannot be competent to testify to it and thus is not a credible witness.
The same 1678 statute held that a legatee who witnesses a will renders the will “utterly void”. But it is clearly unfair to void all of a testator’s wishes because one of the legatees served as a witness. To avoid this inequity, courts allowed legatees to become credible witnesses by forfeiting their legacies. That is, the witness’s inheritance was voided rather than voiding the entire will.
In 1785 the new commonwealth of Virginia passed a law to make this more equitable (and I suspect to codify existing informal practice). It provided that the witness of a legatee was void unless the remaining witnesses were not sufficient to prove the will; in that event the witness would receive only what he or she would have received from an intestate estate.4
Special Cases
Could an executor of a will be a witness to it? How about a trustee given property to hold in trust? In England and in most (if not all) of the colonies executors and trustees were not compensated, so that courts generally allowed executors and trustees to be witnesses. As executors began to be compensated in America, the states generally permitted executors as witnesses on the grounds that compensation was separate from bequests.
Very rarely we might see a case where a person is a valid witness to a will but is not competent to prove it in court. An example is a witness who later marries a legatee. That person was a credible witness to the will but, having later married someone with a vested interest in it, is not a credible witness to prove the will.