Who can witness or attest the signing of a will for it to be valid in law? And what must they do? The legal formalities to make a valid will require the will-maker to sign their will in the presence of at least two witnesses. Executing a will in front of witnesses fulfils a protective function. An unsigned will is not legally valid.
Witness a will – key points:
1. The will-maker must sign the will first in front of two or more witnesses, all present at the same time and in the same place.
2. Witnesses must be mentally competent and be able to see the will-maker make their signature (the attestation) or other sign as appropriate. Someone who cannot see (blind), vision impaired cannot act as a witness.
3. At least two witnesses having attested the will then sign their names; in confirmation that the will-maker’s signature, made in their presence was genuine.
4. Anyone likely to inherit under the will, ie a beneficiary, including their spouse/partner should not witness it – although the law has changed in some states and in others exceptions are permitted. Seek legal advice.
Why must a will be signed in front of other people?
Under succession law a will must be signed in front of at least two people as witnesses as required by the legal formalities for making a valid will. The purpose of having witnesses is a safeguard to prevent fraud and forgery. The presence of witnesses was introduced as far back as the seventeenth century by the English Parliament when it passed the Statute of Frauds.1 Concerns about preventing forgery of testamentary records and making laws on the subject can be seen among the ancient Greek and Roman law makers.
Who can be a witness? – witnesses must be able to see the will-maker sign
Anyone who has mental capacity and credibility to give evidence in a court of law can witness a will – except those who would be unable to see the act of signing. Under the wills and succession legislation anyone who is unable to see and attest (verify) that the will-maker has signed the document can’t witness a will.
A witness cannot be blind
A person who is blind and cannot see cannot be witness another person signing their will. The wills and succession statutes make this clear in similar ways:
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. Section 9 of the Succession Act 2006 (NSW).
‘Persons who may not be witnesses to wills’, s11 of the Wills Act 2000 (NT).
|The law provides that a will itself is not void because of the incompetency of a witness after execution of the will: s16 of the Wills Act 1936 (SA).