Can a Person Who is Receiving a Gift Under a Will Be a Witness to the Will?

By Lane V. Erickson, Attorney

As an estate planning attorney I am often asked interesting questions by my clients. One question that came up recently was whether a family member, or any other person, who would be receiving a gift under a Last Will and Testament could also be a witness to the signing of the will. A short time ago, Idaho law prevented this sort of thing from happening. However, the law in Idaho and in most other jurisdictions have changed.

According to applicable Idaho law: “Any person eighteen (18) or more years of age generally competent to be a witness may act as a witness to a will.” Further, the law states that “a will or any provision thereof is not invalid because the will is signed by an interested witness.” Idaho Code § 15-2-505.

When the Idaho legislature made this change to the statute, and therefore a change to the law, it provided several notes about the change that had been made. Specifically the Idaho legislature stated as follows:

 This section simplifies the law relating to interested witnesses. Interest no longer disqualifies a person as a witness, nor does it invalidate or forfeit a gift under the will. Of course, the purpose of this change is not to foster use of interested witnesses, and attorneys will continue to use disinterested witnesses in execution of wills. But the rare and innocent use of a member of the testator’s family on a home-drawn will would no longer be penalized. This change does not increase appreciably the opportunity for fraud or undue influence. A substantial gift by will to a person who is one of the witnesses to the execution of the will would itself be a suspicious circumstance, and the gift could be challenged on grounds of undue influence. The requirement of disinterested witnesses has not succeeded in preventing fraud and undue influence; and in most cases of undue influence, the influencer is careful not to sign as witness but to use disinterested witnesses.

This change to the law made the execution and witnessing of a last will and testament a much easier process. This is particularly true when the maker of the Last Will and Testament is homebound, or is confined to an assisted living residence.

Keep in mind that the purpose of a witnesses to testify that the person making the Last Will and Testament had capacity to do so. As a regular part of my estate planning practice we provide Witnesses from our office. These individuals are this interested, and therefore reliable when it comes to testifying about the capacity of our clients.

If you have a question about who can be a witness to a Last Will and Testament, or questions concerning your estate planning, we can help. Call us toll free at 877-232-6101 or 208-232-6101 for a consultation with Lane Erickson and the Racine Olson team of Estate Planning attorneys in Idaho. You can also email Lane Erickson directly at We will answer your Idaho Estate Planning questions and will help you solve your Idaho Estate Planning problems.

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