Who Can Witness my Will?

The intention when making a Will is obviously to make a valid Will expressing the intentions as to how a deceased's estate is to be dealt with. To be valid, certain legal formalities must be followed.

First, the Will must be signed and the signing witnessed by two others. The requirement for witnesses has a long history. As far back as 1677, the English Parliament enacted the Statute of Frauds as a response to an increasing prevalence of perjury and frauds.

Most persons with the mental capacity to do so can act as a witness, but they must literally be able to see the signing. This precludes a blind person being a witness (s9 NSW Succession Act 2006).

A further exclusion is anyone who is expected to inherit under the Will. Exceptions to this disqualifying condition are possible, but it is suggested that a beneficiary or someone who may inherit, directly or indirectly (for example, through marriage) should not be a witness. If this rule is not followed, the Will is potentially more likely to be open to challenge over allegations of, for example, too much influence.

Digital forms of Wills, such as emails and text messages, are increasingly challenging what may be accepted as determining a deceased's intentions. While these informal forms demonstrate possibilities, because of the issues they raise, if anything, they could be said to underline the benefits of a formal Will.

Contact Our Wills and Estate Lawyers, Sydney, NSW

Szabo & Associates Solicitors can offer expert advice on all aspects of making, updating or contesting a Will. Please contact us on (02) 9046 8466 or complete our online contact form.