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.
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 people?
- Who can be a witness?
- How many witnesses?
- What must witnesses do?
- Where do witnesses sign?
- Should signatures be made at the bottom of each page?
- Wills and succession legislation on signing wills – execution
- Can a beneficiary be a witness – or will they lose their inheritance?
- Witness-beneficiary rule – jurisdiction differences
- Does the witness need to know that they are signing a will?
- Can an executor or trustee be a witness?
- Justice of the Peace (JP)
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
Naturally a person who is blind and cannot see would not be able to witness another person signing their will.
New South Wales
All the wills and succession statutes make this clear in similar ways by stating something similar to that in s 9 of the New South Wales Succession Act 2006:
Similarly in Victoria, the law states under s10 of the Wills Act 1997 (VIC), ‘What persons cannot act as witnesses to a will’:
A person who is unable to see and attest that a testator has signed a , may not act as a witness to a will.
In Queensland, subsection 10(10) of the Succession Act 1981 (QLD), states that
A person who can not see and attest that a testator has signed a document may not act as a witness to a will.
In the Northern Territory the equivalent section is s11 of the Wills Act 2000 (NT), ‘Persons who may not be witnesses to wills’.
In Western Australia, s11 of the Wills Act 1970, ‘Situation in which person cannot be a witness’ also states that
A person who is unable to see and attest that a testator has signed a document cannot act as a witness to a will.
In South Australia, the law provides that a will itself is not void because of the incompetency of a witness after execution of the will: see section 16 of the Wills Act 1936 (SA).
A beneficiary is anyone who is to receive property or any thing in your will. With a couple of exceptions (see more below), the law is that a beneficiary should not witness your will. Nor should anyone they are married or engaged to. This is known as the witness-beneficiary rule. It has been abolished in some jurisdictions (see below), but all the same, it is preferable even then if such a beneficiary in the circumstances within the law does not act as a witness.
How many witnesses?
The statutes require there must be at least two witnesses. More than two witnesses are permitted. All witnesses must be present at the same time and in the same place with the will-maker when the will is executed.
Does signing a will and executing a will mean the same thing?
Strictly no. To “execute” a will means to comply with all the requirements or legal rules set out by legislation on the procedure for signing the will document in order for it to become enforceable at law on the death of its maker.
What must a witness do?
To make a valid will, the statutes require witnesses to do two things in front of the will-maker: first to attest the will, then to sign, or proscribe the will themselves.
1. Attesting the will – witnesses must be present when the will-maker signs
At least two of the witnesses must be present at the same time the will-maker makes their signature or mark on the will document (if unable to sign). Importantly, the witnesses must be able to see and watch the will-maker make their signature.
2. Witnesses must sign (proscribe) the will
Following the attestation above, the witnesses must then add their signature to the will in the presence of the will-maker. In law, by making their signature the witness is affirming that the signature of the will-maker is genuine; that they were present and saw the will-maker sign the will document, or make their mark, and can therefore attest to that taking place. In other words, if called upon to do so, the witnesses can say that or testify in a court. Witnesses should record their name and address below their signature.
What the law states about signing wills
To read the statutory rules on executing a will click the links below to the relevant sections in the wills and succession law statutes in the various States and Territories:
NSW: ‘How should a will be executed?’ s 6 of the Succession Act 2006 (NSW)
QLD: ‘How a will must be executed’, s 10 of the Succession Act 1981 (QLD)
SA: ‘Requirements as to writing and execution of will’, s 8 of the Wills Act 1836 (SA)
VIC: ‘How should a will be executed?’, s 7 of the Wills Act 1997 (VIC)
WA: ‘Execution generally’, s 8 of the Wills Act 1970 (WA)
TAS: ‘How a will should be executed’, s 8 of the Wills Act 2008 (TAS)
NT: ‘How wills should be executed’, s 8 of the Wills Act 2000 (NT)
ACT: ‘Will to be in writing and signed before 2 witnesses’, s 9 of the Wills Act (ACT)
Where do witnesses sign
There is no particular requirement for where witnesses must sign, below is an example. Generally witnesses sign below the testator’s signature, after both observe the testator make their signature or acknowledgement first. All three should use the same pen.
Should signatures be made at the bottom of each page?
While technically not a requirement that the bottom of each page of the will is signed, to do so is a safeguard against page substitutions. The usual signing procedure is followed. First the will-maker signs their name in the presence of both witnesses. Then using the same pen, each witness signs their name, everyone being present together throughout.
Can a beneficiary be a witness – or will they lose their inheritance?
The usual legal position in most jurisdictions is that anyone likely to receive a gift under the will, an inheritance, should not act as a witness to that will. Nor should their spouse or partner, or even anyone engaged to them.
Lawyers call this the witness-beneficiary rule. Wills and succession statutes provided that if a beneficiary witnessed the will, they would be disqualified from taking the gift. The idea was to reduce the potential for influence over the will-maker, their testamentary intentions and what they wanted in their will.
Exceptions to the witness-beneficiary rule exist in some states where the law has been modified, see below. But even so, to avoid suspicion being raised during the probate process and proving the will, it is still a good idea to avoid having any potential beneficiary or anyone close to them, act as a witness to that will. If you are uncertain, seek legal advice.
Beneficiary lost out because they were a witness
In a NSW case the Court applied the witness-beneficiary rule under the Succession Act 2006 (NSW) to deny the beneficiary their inheritance under the will. One of the attesting witnesses was to be given a business under the will and a limited right of residence in the willmaker’s home. The business had ceased trading before the willmaker died.
The Court said the gift of a right of residence was void because the intended beneficiary had witnessed the will. This was contrary to section 10 of the Succession Act 2006 (NSW). Section 10 sets out the rules on whether an interested witness can benefit from a disposition under a will. It is interesting the Judge observed that the will appeared to have been prepared without legal advice.3
Non-uniformity among states and territories on the witness-beneficiary rule
In some jurisdictions this witness-beneficiary rule has been abolished: SA, VIC, WA and the ACT; while in the others (QLD, NSW, TAS and NT), there are exceptions in specified circumstances. Even in those states and the territory where the witness-beneficiary rule has been abolished, it is still preferable to avoid having a beneficiary or someone likely to benefit, witness the will.
Exceptions to the legal rule
In Queensland, New South Wales, Tasmania and Northern Territory, the legislation provides for exceptions to the disqualification of a person who acts as a witness and who is to receive a benefit under the will.
The situations excepting disqualification in these jurisdictions are:
- at least two of the people who attested are not beneficiaries;
- all persons who would benefit under the will and have capacity, have consented in writing to the disposition being made;
- the “Court is satisfied that the testator knew and approved of the disposition and it was given or made freely and voluntarily by the testator.”2
Despite the above, if at all possible it is preferable not to allow a beneficiary or anyone likely to inherit something under the will, including indirectly through marriage or partner, to be a witness. Not doing so makes it more difficult for future allegations to be made about the will-maker’s testamentary intention, capacity, and so on.
Did the will-maker know what they were signing? Was it what they wanted? Did they know what the will said and approve of it?
Does the witness need to know that they are signing a will?
No. Under the relevant legislation a witness does not need to know that the document is a will, nor its contents. In other words if a witness was unaware that the document was a will, the validity of the will won’t be affected, providing it was executed according to the formalities as prescribed by the applicable legislation.
There does not need to be any “publication” of the will as used to be required. Publication of a will in this sense meant that the willmaker (testator) had to tell witnesses that the document was his or her will, but this rule has been abolished. Reform of the law changed this. It was thought that people should be able to say what they wanted and have it documented, without having to tell those witnessing what it was all about.
After all, if called upon to do so following the death of the willmaker, witnesses must be able to verify that they saw the willmaker sign the document voluntarily and that the signature was theirs. Or in cases where a willmaker is unable to physically sign, they directed or authorised someone acting on their behalf to do so.
Can an executor and/or trustee be a witness?
Yes. The law provides (see SA example below) that if an executor/trustee witnesses the will they are not prevented from then acting in those roles. However, they should not be a witness if they are a nominated executor, trustee and a beneficiary as well; as is typically the case between spouses/partners.
In South Australia the statute on wills provides for an executor of a will to be a witness to it. Section 19 ‘Executor to be admitted a witness’ of the Wills Act 1936 (SA) states:
Wills legislation in Tasmania is similar, see section 8 of the Wills Act 2008 (TAS).
Must a witness to a will be a justice of the peace (JP)?
No. Some people ask whether a JP must witness a will or whether a JP must sign a will. The law does not require that a JP must witness or must sign a will. Below are links going to the provisions on executing a will under the respective state and territory succession laws.
Can a JP witness a will?
Yes, a JP may witness a will providing they can see and verify (ie attest), if ever called upon to do so, that they were present with the will-maker and saw them make their signature on the will document.
The role of a JP is to witness a person making their signature on important, legal documents such as statutory declarations, affidavits and to certify copies of original documents as being a true and faithful copy. Find out more about what a JP is legally entitled to do in your state/territory by searching your state government’s website.
Finding a Justice of the Peace (JP)
If you are looking for information on what JP’s are authorised to do or where to find one near you visit the Justices of the Peace pages online under your state or territory’s government’s sites below:
NSW: Justices of the Peace & JP Public Register.
VIC: Royal Victorian Association of Honorary Justices.
SA: Find a Justice of the Peace.
QLD: Find a Justice of the Peace.
WA: Find a Justice of the Peace.
ACT: Find a Justice of the Peace.
NT: Justice of the Peace & Commissioner for Oaths.
Where do you go to execute your will?
Normally this would be in the offices or place of business of your solicitor, or the public trustee as the case may be.
In certain circumstances, and whether it is their usual practice, some solicitors may mail out the draft will to clients with instructions on the procedure to be followed for execution, then returning the document for checking. Or the solicitor may attend the client’s home, place of care or hospital as required.
1. Statute of Frauds, An Act for prevention of Frauds and Perjuryes, 29 Car 2 c 3, 1677. An Act of the English Parliament applying to contracts for sale of land and wills, among other matters. To be valid and enforceable these documents must be in writing, signed and witnessed.
2. Wording from the respective statutes. Find a table of links to the various state and territory statutes by clicking here to go to the legislation page.
3. Morrison-Conway & Anor; Estate of the Late J C Walsh  NSWSC 685
23 September 2014, last updated 24 August 2021
© BHS Legal