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What qualifies someone to be an eligible Will witness?

In NSW, it’s vital that your Will is signed and witnessed by at least two other parties. If you fail to meet these requirements, the document will be legally invalid, meaning there’s a good chance your estate will be divided by other terms than the provisions you set yourself.

But validating a Will is more complex than just asking two people to watch you sign the document – there are specific eligibility terms dictating who can and can’t act as a witness. Let’s take a look at some of the basic rules.

1) Witnesses must be mentally capable
This means witnesses have to have the capacity to understand their position as witness and the legal ramifications of acting as one. This rules out most people with mental disabilities. It also means that anyone under the influence of drugs or alcohol doesn’t have the capability to witness a Will signing.

2) Witnesses have to be credible
Credibility refers to the character and motives of the witness – if the court isn’t satisfied the witness is able to impartially fulfil their duties, they will deem that witness ineligible. This ruling covers issues with Will-making fraud.

3) Witnesses have to be able to see the signing
Under current estate legislation, anyone who is unable to literally see and verify that the Will-maker has signed the document (such as blind or vision impaired individuals) cannot act as a witness.

4) Witnesses shouldn’t be a beneficiary
While people who stand to benefit from provisions in the Will shouldn’t act as witnesses too, it’s technically legal. However, there are very tight restrictions governing this:

  • Beneficiaries can be a witness if there are at least two other non-beneficiary witnesses present.
  • Written consent has to be obtained from anyone who would benefit if provisions made to the witness were disallowed.
  • Additionally, the Court has to rule that the Will-maker was fully aware of and agreed with any provisions that favoured the beneficiary/witness.

5) Witnesses should be chosen with the help of a solicitor
Choosing who will act as a witness to your Will is an important decision. You mightn’t be aware of a link they have to your estate that may compromise their eligibility, or have forgotten you left a gift to them – but any mistake or oversight can cost you down the track. It’s best to get the help of a Will & estate legal expert in order to ensure your Will signing is legally above-board.

© 2021 
Contesting Wills
 — Gerard Malouf & Partners

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