Should I witness a Will?

In order for a Will to be legally binding, the will must be signed by the person making the will and their signature must be witnessed by two independent adults. International Wills have the same requirement, however there is a requirement for three independent adult witnesses for this type of Will.

Why does a Will need a witness?

Witnesses to a Will are required by law, to protect against the scenario where someone fraudulently signs a Will in another person’s name.

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.

Having witnesses to a Will means that there are persons available to later give evidence regarding the circumstances surrounding the signing of the document (if needed), and to confirm that the Will was in fact signed by the correct person.

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 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 an independent adult. This is an attempt to eliminate any potential claims against the validity of the Will and its execution.

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 that they were present 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.

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.

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.

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.