Who Can Witness a Will?

May 29, 2024

Creating a will is a fundamental step in managing your estate and ensuring that your assets are distributed according to your wishes after your passing. However, the process involves more than just deciding who gets what. A critical component of creating a valid will is ensuring it is witnessed properly. 

For a Will to be valid in Queensland, two eligible witnesses must witness the signing of the document. This blog explores the legal requirements for witnesses, who can act as a witness, and the responsibilities associated with witnessing a will.

Legal Requirements for Witnesses

A Will must be signed by the person making the will in the presence of two or more witnesses, both of whom must be present. The witnesses must then sign the Will in the presence of the Will maker.  This is necessary to demonstrate that the Will has been executed properly and to help prevent fraud.

Who Can Witness a Will?

Eligibility Criteria

Age Requirements: Each witness must be at least 18 years old. The witnesses must be adults and are therefore presumed to have the legal capacity to witness legally binding documents.  

Mental Competence: Each witness must be mentally competent, meaning they understand that they are witnessing the execution of a Will and the implications of this act.

Who Should Not Witness a Will

Beneficiaries and Their Spouses: It is strongly advised that beneficiaries of the Will, or the spouse of a beneficiary, not act as witnesses. While the entire Will is not necessarily invalidated if a beneficiary or their spouse witnesses it, the gift to that beneficiary can be, as the witness should not benefit from any gifts written in the Will. Where a beneficiary to a Will witnesses it’s signing, ordinarily any gift to that witness is rendered void unless there are at least two other eligible witnesses to the will who are not beneficiaries.

Minors: Individuals under the age of 18 are not suitable as witnesses because it can be reasonably inferred that they are not capable of understanding what they are witnessing and the implications of the Will.

Specific Rules and Exceptions

Witnesses must also be clear-sighted, as they must physically see the Will maker sign the Will. 

One notable exception to the standard witness requirements is in the case of Wills made by members of the Defence Force during active service. These Wills can be made in less formal circumstances, which may include exceptions to the usual requirements for witnesses.

The Role of a Witness

Properly witnessing a Will is a serious responsibility – without it the Will is invalid. The reason why it is important for a witness to be present when the Will maker is singing the Will, is to ensure that the witness can attest that the Will was signed voluntarily and that the Will maker had the mental capacity to understand the implications of their actions.

A witness’s role goes beyond merely observing the signing; they must also affirm that the testator is acting under their own free will and is fully aware of what the signing of the will implies. This includes confirming that the testator is not under any duress or undue influence from third parties. The witnesses help prevent future legal disputes regarding the validity of the will.

If a Will is not properly witnessed, its validity can be challenged in Court, which might lead to a lengthy legal process and potential alteration of the intended distribution of the estate. Proper witnessing is therefore not just a formality but a safeguard against potential forgery and claims of incapacity.

Best Practices for Choosing Witnesses

When choosing witnesses for a will, it is vital to select individuals who are reliable and impartial. For example, it is advisable to choose witnesses who are likely to be easily contactable in the future, should any questions arise about the will’s signing.

Tips on choosing reliable and appropriate witnesses:

  • Choose witnesses who are known for their integrity and honesty.
  • Ensure witnesses are not beneficiaries to avoid conflicts of interest.
  • Prefer witnesses who are younger than the testator to increase the likelihood that they will be available if needed in the future.
  • Select witnesses who understand the gravity of what they are witnessing and are capable of articulating this should it ever be necessary.

Chat With a Wills and Estate Lawyer

The role of a witness in the execution of a Will is paramount in upholding its legality and validity. Properly selected and reliable witnesses help avoid later litigation. 

Anyone preparing to draft a will should carefully consider their choice of witnesses to help protect the integrity of the Will and ensure that the testator’s final wishes are honoured without dispute.  We encourage you to seek legal advice to ensure all formalities are followed correctly.

If you’re drafting a will, book a free consultation with the wills and estate planning lawyers at The Legal House today. We understand that talking about what will happen with assets in the event of your death is difficult, and so our services are tailored to support you and your family through during the process. By understanding the essential elements around drafting a will, you can ensure that your will stands firm against any legal challenges, protecting your final wishes and providing peace of mind for you and your loved ones.

Nick Harrison

Nick Harrison

Founder & Solicitor

Nick is passionate about family law, domestic violence, and wills and estates, Nick has been practising as a Solicitor of the Supreme Court of Queensland and the High Court of Australia since 2012.  He provides practical legal advice to his clients, using his unique blend of impeccable legal skills and real-life experience as a police officer, husband and father.

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