Can I Make a Testamentary Gift to Someone Who Witnesses My Will?

A question I hear often is whether a person who signs as a witness can also receive a gift under the will. In Texas, the short answer is that the will itself is not invalid just because a witness is also a beneficiary. But the gift to that witness can be at risk unless an exception applies. Understanding how the rule works can help you avoid problems later.

The General Rule

A gift you make in your will to someone who signs your will as a subscribing witness is presumed void unless the will can be proved without that witness’s testimony.

The core concern addressed by this rule is reliability. A person who signs as a witness and also stands to receive a gift may have a reason, conscious or not, to shade their testimony about what happened at the signing. The purpose of these rules are to discourage undue influence and fraud at the signing ceremony, reduce the risk of perjury when proving the will, and preserve public confidence that the document reflects the testator’s true intent rather than a witness-beneficiary’s interests.

Three Important Exceptions

Texas law provides practical exceptions. A gift to an interested witness will not be void if any one of these applies:

1. The validity of the will can “be otherwise established”, for example by the testimony of another witness, then the gift will not be void.
2. The witness would have inherited something under the Texas intestacy statutes if you died without a will, the witness may still receive up to that amount.
3. If a disinterested, credible person corroborates the interested witness’s testimony proving the will, the bequest is not void.

What Counts as a “Disinterested Credible Person”?

Texas does not provide a rigid checklist, but in practice, a “disinterested credible person” is someone with no financial stake in the estate who can truthfully confirm what happened at the signing. Courts commonly look for independence and reliability. The safest approach is to choose witnesses who don’t have anything to gain from your will.

Best Practices When Choosing Witnesses

For a will to be valid, Texas requires that two credible witnesses who are at least 14 and also sign the will in your presence. To avoid confusion or contests later, you should choose two disinterested adult witnesses who you have not named as a beneficiary in your will and who do not expect to receive anything from your estate.

Also, make your will self-proving. A self-proving affidavit confirms that the testator properly signed the Will in the presence of two witnesses. Therefore, live witness testimony during the probate proceeding will be unnecessary in most cases.

Read the following article to learn what makes a Texas will valid: Requirements of a Valid Will in Texas.

A Related, Stricter Rule About Drafting Attorneys

A separate statute voids a devise to the attorney who prepares or supervises the preparation of your will, as well as certain close relatives and employees of that attorney, unless the person is a close relative of the testator.

If you’re writing or updating your will, an experienced Texas estate planning attorney can help ensure your will is executed properly to avoid complications after you die.