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Signing a will, having it witnessed & witnesses

How many witnesses?

The statutes require there must be at least two witnesses. More than two are permitted.  However all persons acting as witnesses must be present at the same time and in the same place with the will-maker signs their will.

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.

NSW  ‘How should a will be executed?’ s 6 of the Succession Act 2006 (NSW)
VIC How should a will be executed?’, s 7 of the Wills Act 1997 (VIC)
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)
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)

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.

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