Willed Australia

Witnessing a Will: Can a family member witness my Will?

Introduction

A will is a legal document that outlines how your named executory will need to handle your assets after you die. For your will to be valid, you need two people who can witness a will.

Both of these witnesses are responsible for confirming that you did sign and then must sign in the presence of you but not one another. Your named executor then carries out your will.

In this post, we’ll define who can act as a witness for your will and who cannot.

Why do you need a witness present when you sign your will?

Two witnesses must sign a will for it to be valid under a court of law. The reason you need witnesses is to prevent forgery and fraud. By witnessing the signature and signing, the witness is confirming that your signature is genuine. It does not mean that they need to know the details of your will.

Who can act as a witness for your will?

In short, anyone who has the mental capacity and credibility to give evidence in the court of law can witness a will. But there are a few specifics that are worth considering when selecting witnesses.

  1. They must be an adult. The law states that your witness must be at least 18 years ago to witness your will.
  2. They cannot be a beneficiary of your will. If a beneficiary or their spouse/de facto partner acts as a witness, their share of the will would be void under Australian law. It’s a risk that beneficiaries listed in the will, such as family members or executors, could potentially influence your will.
  3. They must be able to see. Because the witness’s role is to mark you and your signature as authentic and genuine, the witness must be able to see.

Summary

When in doubt, it’s best to choose witnesses not included in your will as a beneficiary, such as family members, children or a spouse/de facto partner. Those you might consider using as your witness could be a friend, a JP, or the will’s executor if they are not a beneficiary.

Disclaimer: 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.

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