Witnesses are required for important events like weddings, court trials and world record attempts. A Will is no different. It is a legal requirement in Australia when making a Will that at least two people see the will-maker (also known as a testator) sign his or her will. If this requirement is not complied with, the Will may not be legally recognised. As one of the most important legal documents you will ever sign, the requirement to have a Will duly witnessed seeks to prevent issues like forgery, fraud and undue influence.
But who can witness a Will?
Strictly speaking, the only requirement is that the witness must be able to see the testator sign the document. This means people who are blind would be disqualified from acting as a witness to a Will. While there is usually no age limit for a witness, it is preferable that the witnesses be at least 18 years of age. Also, the witnesses do not need to know the contents of the document being signed.
There may be one further restriction on acting as a witness to a Will. However, this is not relevant for every State in Australia. Two States where such a restriction applies are Queensland and New South Wales. In these States, if a beneficiary in the Will acts as a witness, any gift to that beneficiary in the Will is void.
This means the beneficiary will receive nothing from the estate unless:
- there were at least two other witnesses who were not beneficiaries;
- all the affected beneficiaries consent in writing to the beneficiary’s gift and have the capacity to give that consent (e.g. children would not be able to consent); or
- the Court is satisfied that the testator knew and approved of the gift, and it was given freely and voluntarily by the testator.
This issue was highlighted in the recent New South Wales case of Walters v Dawson [2024] NSWSC 570, where the deceased’s de facto partner witnessed his Will, in which he left his entire estate to the de facto partner. In this case, the Court was satisfied that the deceased knew and approved the Will and that it was made freely and voluntarily. Critical to the Court’s decision was the evidence of a person who resided at the same caravan park as the deceased. That person stated that the deceased referred to the de facto partner as his spouse and said that he wanted the partner to have it all.
While the de facto partner was successful, the additional legal costs involved in the court application could have been avoided had the deceased engaged an experienced solicitor to prepare his Will instead of a retired real estate agent.
If you would like our assistance in making a Will or if you have a Will that has been witnessed by a beneficiary, please contact us to book a consultation.
By Max Williams
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