What are the rules for witnessing the writing of a will?

Published 04 Jan 2018

Writing a clear and up-to-date will is the best way to ensure an estate is correctly distributed to chosen beneficiaries. Instructions for writing a valid will are outlined in Chapter 2 of the Succession Act 2006. 

Witnesses are a crucial part of the process, and the Act offers comprehensive guidance on the number of people who must observe the writing of a will and the actions they are required to take in order to validate the document.

Let's take a closer look at the Act and clear up any confusion regarding witnesses and wills.

How many witnesses are required? 

Section 6 of the Act specifies that a testator - the person writing the will - must sign the document in front of two or more witnesses, all of whom must be present at the same time.

A minimum of two witnesses must also attest and sign the will in the testator's presence, although the witnesses don't need to do this in front of one another. Furthermore, witnesses aren't required to be aware that the document they observed being signed was a will in order for it to be valid.

There are very few restrictions preventing people from being witnesses. Section 9 of the Act merely specifies that an individual must be able to see and verify that the testator signed the document.

Are beneficiaries of the will allowed to be witnesses?

An individual's legacy from a will is considered void under Section 10 of the Act if they are an 'interested witness'. In other words, witnesses who are beneficiaries may not be entitled to their bequests.

However, there are various exceptions that make this unlikely to occur in practice. The legacy will not be deemed void if:

  • There are at least two witnesses who are not interested parties;
  • All affected beneficiaries consent in writing to the bequest; and/or
  • The courts are happy that the testator was aware of the conflict of interest and nonetheless gave free and voluntary consent.

Can I contest the will?

You can contest a will if you believe the document is invalid because the rules governing witnesses weren't followed.

Nevertheless, the courts have the power to assert that a will is valid even when the testator didn't adhere to traditional execution processes.

To learn more about the laws surrounding will contestations and witnesses, please contact Gerard Malouf & Partners Will Dispute Lawyers.

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