When it comes to writing your Will, the final step in making it legally binding is to have it witnessed. In general terms, a witness is a person who is present when someone signs a document – they confirm that the signature is genuine by adding their own signature to it. If you have been asked to bear witness to a Will, there are a few specific elements to consider.
Why does a Will need to be witnessed?
Once the Will-maker signs the Will, witnesses having attested the Will then sign their names in confirmation that the person who signed it is the same person who is named on it. This act of signing a Will in front of two adult witnesses fulfils a protective function - it’s a mechanism to safeguard against fraud and forgery. The witnessing of a Will is one of the requirements to render that Will legally binding. Having these witnesses also means that there are persons available to later give evidence regarding circumstances surrounding the signing (if these are called into question) and to confirm that the Will was in fact signed by the correct person.
Who can and cannot be a Witness?
First and foremost, a witness must have the capacity to actually see the Will-maker sign. This is stipulated in all the Wills and succession statutes of states and territories in Australia, which specify that a person who is unable to see and attest that a testator has signed a document may not act as a witness to a Will. A witness’ ability to attest (or verify) that the Will-maker has signed the document relies on them having mental capacity and credibility to give evidence in a court of law.
In addition to being able to see and attest, the law states that a witness must be over 18 years of age – an adult. Some states (New South Wales and Queensland) require a witness to be an ‘independent’ adult, meaning that they cannot:
- Be a beneficiary mentioned in the Will
- Be the spouse of the Will-maker.
The witness beneficiary rule has been abolished in Victoria, meaning a beneficiary to a Will may witness its signing provided they fulfil the other requirements. While it is common for family members of the testator like children, siblings and spouses to witness Wills in this state, it is still advisable that the witness to the Will be independent. This could serve to minimise risk of any potential claims against the validity of the Will and its execution when it comes under scrutiny during the probate process.
Does a Witness need to be a Justice of the Peace?
The role of a Justice of the Peace (JP) is to witness a person making their signature on important legal documents such as statutory declarations, affidavits or to certify copies of original documents.
While a JP can witness a Will if they fulfil the criteria mentioned in the previous section, there is no legal requirement for this. The only time there is a requirement for at least one witness to be a JP (or a lawyer) is when the Will is being witnessed remotely using an audio visual link, meaning the witnesses are not physically present to witness the signature.
What does a Witness do, aside from witnessing the Will-maker’s signature?
Witnesses do have some responsibilities beyond just witnessing the Will-makers signature, such as ensuring they are satisfied the person before them is indeed the Will-maker. The Witness might do this by reviewing at least one form of identification of the Will-maker and checking their details match the ones on the Will documentation. By doing this, the witness is affirming their presence at the time the Will signing took place and that the signature is genuine, therefore enabling fulfilment of their attestation duties.
Witnesses also have to sign (or proscribe) the Will themselves, presuming they are physically present when the Will is signed. Witnesses in Victoria must sign at the foot of each page (if there are multiple pages), all using the same pen and all being present together throughout.
Does the Witness need to know that they are signing a Will?
No, a witness is not legally required to know that the document they are witnessing is a Will, or what it contains. The validity of the Will won’t be affected if a witness was unaware of the nature of the document, as long as it was signed and witnessed in accordance with the applicable legal requirements.
The witness does not have any further obligations past this point, unless they are called upon to provide evidence following the death of the Will-maker. If that occurs, the witness may be required to verify whether:
- They saw the Will-maker voluntarily sign the document.
- The signature belongs to the Will-maker (or of someone authorised to act on their behalf)
- The deceased had testamentary capacity at the time of signing
- There were other witnesses to the document signing, and who they were
- Other people were in the room at the time of signing and what they may or may not have said
- The deceased read the document in front of them or had any questions
Should I always say ‘Yes’ to signing a Will?
So, now that you know what’s involved in witnessing a Will-maker sign their Will, the question is whether you should indeed take on the task. The answer, as with most things is, not necessarily. And especially not if you feel uncomfortable doing so.
It’s common for friends, neighbours or even strangers to witness a person’s Will. However, given that you might be called upon to verify the details of the meeting at which you witnessed the Will, you might like to do a little research first. Ultimately, it is in your interest to first seek some assurance that the Will-maker has the required capacity to sign, and that they are not under any undue influence from other parties to do so.
The content of this blog is intended to provide a general guide to the subject matter. This blog should not be relied upon as legal, financial, accounting or tax advice.