Should I witness a Will?

In order for your Will to be valid, the law states you must sign the document in the presence of two independent adults. The powers of this document to distribute your assets, property and business leftover in your estate only takes effect if this step is undertaken.

Without meeting this standard set by the law- when you die there is a risk the instructions will be unable to be carried out. This could leave your family with stress, your guardian instructions and children uncertain, and your assets automatically carried onto children, married partners or family.

Why is Witnessing a Will Necessary?

Witnesses to a Will are required by law, to protect against the scenario where someone fraudulently signs a Will in another person's name. This law is there to protect your family and other beneficiaries after your death- ensuring that power or assets haven't fallen into the wrong hands through fraud.

When witnesses sign the Will, they are signing a statement to confirm that the person signing the Will is the same person who is named on the Will.

The intended effect of this law is that it ensures there are available people to later give evidence in court, regarding the circumstances surrounding the signing of the Will. If the legal validity of the Will comes into question, witnessing provides evidence to confirm that the original Will was in fact signed by the correct person.

These rules apply to protect vulnerable people from coercion, exploitation and fraud which undermine the person's wishes over their estate assets distribution.

Can Anyone be a Witness?

In New South Wales and Queensland, the witnesses to a Will are required to be an independent adult.

To be considered ‘independent' you must not be:

• A beneficiary mentioned in the Will.

• The spouse or de facto partner of the will maker.

However, Victoria, South Australia and Western Australia allow any person, including a spouse or beneficiary, to witness a Will provided that they are an adult, have legal capacity and can witness the will maker sign the Will.

Although a spouse and beneficiary are able to witness the Will, it is encouraged and suggested that the witnesses to the Will are independent adults. This is an attempt to eliminate any potential claims against the validity of the Will and its execution. For example, if there is a claim of exploitation or abuse of power if the witnesses stand to benefit from the death and the distribution of the estate.

In addition, these two witnesses must also have full mental capacity for the Will and witnessing to be considered valid. This is also important, considering they may be integrated into the probate process to validate the Will.

Does the witness have any legal obligations?

When a will maker is ready to sign their Will, the witness should be satisfied that the person before them is the Will maker. In this instance, the Will maker should review at least one form of identification of the will maker, to ensure that their details match what is on the Will documentation.

The reason for this is because the witness is affirming their presence at the time the Will was signed and that the signature is genuine, therefore allowing the witness to be able to attest to the will signing taking place. (s6 Succession Act NSW, s10 Succession Act QLD, s8 Wills Act SA, s7 Wills Act 1997 VIC, s8 Wills Act 1970 WA, s8 Wills Act 2008 TAS and s8 Wills Act 2000 NT).

Importantly, a witness is not legally required to know that the document they are witnessing is a Will, and in this instance, once the Will is signed and witnessed in accordance with the legal requirements, a witness does not have any further obligations.

However, there may be some circumstances where a witness is required to provide evidence after the will maker has died. This can occur if someone is contesting the Will, and evidence is required about:

• Whether the deceased had testamentary capacity at the time of signing the document.

• Whether the deceased in fact signed the document.

• Who the witnesses were to the Will document.

• Whether other people were in the room at the time of signing the Will and what they may or may not have said.

• Whether the deceased read the Will document in front of them or had any questions.

When Should I Refuse to Witness a Will?

It is normal for friends, neighbours or even strangers to witness a person's Will.

However, there is no requirement for you to be a witness to a Will if asked, and you do not need to do so if you are uncomfortable.

Mental capacity concerns

It is particularly suggested that you should not witness a Will if you have concerns about the capacity of the will-maker to sign the Will, or are concerned that the will-maker is being forced to sign the Will by family members.

Representing a legal document which, if validly executed, has implications for what will happen to the estate of the Will maker after they die- it's an important responsibility.

Conflict of interest: Family, children or executor of the estate

As mentioned above, if you are outlined as a beneficiary or executor in the Will you will be unable to act as a valid witness in some states. Whilst rules vary per region, as the executor or beneficiary the advice is often to avoid witnessing in any state- given that you are unable to be considered impartial.

For example, any financial gain or investment in the distribution of assets in the estate, can bring into question conflicts of interest if the validity of the Will is questioned in court further down the line.

Uncomfortable with the associated powers of the role

Under the right circumstances, your presence has the power to grant a beneficiary access to money, property or other financial assets which the deceased wanted them to have- easing the probate process and ensuring assets are distributed according to the deceased's wishes.

On the other hand, under cases of fraud or exploitation- your same presence has the power to facilitate money falling into the wrong hands. With serious financial and emotional implications for loved ones left behind, it's essential that you only agree to take on this role if you are certain of the identity of the person writing the signature.

To Wrap Up

For assets to be distributed according to the wishes outlined in a Will, the Will maker must sign the document in writing, and in the presence of two witnesses. This gives legal authority to the Will, validates its distribution wishes in the eyes of the law, and allows the executor to administer the assets to beneficiaries. As a will maker, it's therefore important to keep the original valid Will in a safe place after signing.

Whilst most people have no more responsibilities beyond overseeing the signing of the Will, in some cases they may be required to give evidence in court on the context of how it was signed. This is only relevant if there are concerns over who is set to benefit from the Will, and whether the estate wishes were made under fraudulent or coercive circumstances.

For this reason, it can be responsible to avoid using beneficiaries to witness the signing. Rules on eligibility do vary by state, but the general guide to avoid questions of intent do stipulate that the executor, beneficiaries and anyone in the family with power to benefit, avoid taking on this role.

We recommend seeking advice from a lawyer if you are unsure about the powers of witnessing a Will, or if- as the Will maker- you need advice on which person to appoint to take on this role.

How Safewill Can Help

Safewill Legal provides affordable, accessible and flexible legal advice for all end of life matters, and estate administration. If you have any questions about whether you should witness a Will, please don't hesitate to contact the Safewill Legal team on 1300 942 586.