Signing and witnessing Wills: what are the rules?

3 March 2020
A Will is probably one of the most important legal documents that any of us will sign during our life time.

It determines, among other things, who is in charge of the administration of your estate and how your estate assets are to be distributed.

A well planned Will creates peace of mind for you and your family. The absence of a Will, or a Will that no longer reflects your current circumstances, can end in uncertainty and dispute.

Who can be a witness?

Strict requirements govern the signing and witnessing of wills in Australia, which reflect the importance of a will.

For a Will to be valid, the Will maker must sign it in the presence two witnesses, who must also sign it in the presence of the Will maker. Ideally, the Will maker and witnesses should sign every page and use the same pen.

In Victoria, South Australia, Western Australia and the ACT, any adult can act as a witness to a Will. This means that a spouse or adult child of the Will maker can act as a witness, even if they are named as beneficiaries in the Will. 

However, in Queensland, the Northern Territory, New South Wales and Tasmania, a witness cannot also be a beneficiary of the Will (subject to some exceptions). This is commonly referred to as “the interested witness rule”.

How do I go about getting my Will signed?

If you’ve worked with a lawyer to create your Will, then ideally it would be signed in the presence of your lawyer and another witness so that it is validly executed.

If you are unable to meet face-to-face with your lawyer, some states (Queensland, New South Wales and Victoria) have introduced temporary measures during the coronavirus pandemic that allow for Wills to be signed and witnessed by video conferencing technology.

Another option is that the original Will can be posted or emailed to you so that you can arrange your own witnessing. This is not an ideal scenario and brings with it the risk that the strict signing requirements won’t be complied with.

What happens if my Will isn’t witnessed properly?

Incorrectly signed and witnessed Wills are some of the most common reasons that a Will is deemed to be invalid.

If you cannot find a way to have your Will witnessed, you should still proceed and sign it, making it clear that you intend it to be your last Will. You should then ensure it is signed and witnessed correctly as soon as it is possible to do so.

Having a properly signed and witnessed Will not only avoid the potential of someone challenging your Will, but also helps ensure that your estate will be distributed as you intended.

If you haven't started making your Will, our online Wills service, MyLife Wills® only takes about 30 minutes and you can get started from the comfort of your own home. There's never been a more important time to get your estate sorted. 

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