Published 16 Mar 2017
Witnessing a will is an integral part of a valid will. Failure to follow the requirements set out by the New South Wales government can be foundations for contesting a will.
However, before you dive headlong into legal action, there are a number of things you need to know about witnessing. By understanding the process, you are in a much better position to decide whether you have the legal grounds to launch a family provision claim or other will dispute procedure.
Who can be a witness?
The first significant part of witnessing is the witness themselves. Under New South Wales law, a witness cannot be a beneficiary of the will. If this requirement is transgressed, there is a possibility that the beneficiary will lose their inheritance.
However, this will not always disqualify the will. In fact, Section 10 of the Succession Act 2006 allows the spouse of a beneficiary to be a witness. What's more, a beneficiary can be a witness if there are two other witnesses who are not beneficiaries, written consent from all other beneficiaries, or the court is satisfied the will-maker knew of the conflict of interest.
What happens if a will is not witnessed?
While this scenario is not a common one, it does happen and opens the door for a will dispute to occur in the courtroom or in arbitration. It can call into question the validity of a will, but does not automatically make a will invalid.
In fact, section 8 of the Succession Act sets out a number of rules that allow the court to set aside the formal requirement for the creation of a will. These include the procedures that dictate the witnessing of a will.
This and many other instances like it show the power of the courts to make judgements that could throw someone looking to contest a will off. While this can be confusing, and in many cases infuriating, it does act as a signal to seek the expertise of a contesting wills lawyer in New South Wales.
Their expertise can ensure that you do not fall victim to any misinformation or become hamstrung by legal obstacles. The knowledge and advice they can provide you is essential to a successful will dispute and their skills in the courtroom can ensure you get a fair outcome.
Talk to the experts at Gerard Malouf and Partners Compensation, Medical Negligence & Will Disputes Lawyers today.