Can a beneficiary be a witness – or will they lose their inheritance?
The interested witness – beneficiary rule is that anyone likely to receive a gift under the will, that is an inheritance should not witness that will. Nor should their spouse, partner, or even anyone engaged to them. The statutes provided that if a beneficiary witnessed the will such interested witnesses would be disqualified from taking the gift.
A beneficiary is anyone you are leaving property or gift to in your will. Depending which state or territory you live in, there is a rule of law that if your beneficiary, including their spouse or partner witnesses your will, they will be disqualified from inheriting the property or taking the gift. This is known as the witness-beneficiary rule. See more below.
The witness-beneficiary rule was introduced into English law for the purpose of protecting testators (will makers) from the influence of others most likely to gain a benefit under the will. The idea was to reduce the potential for influence being exerted over the will-maker as to what their testamentary intentions were, what they wanted in their will. Those most likely to get something it was reasoned would be most interested in what the will said or might say and so could not act as witnesses. Some might therefore be tempted to assert influence over the willmaker to favour them. They were described as being ‘interested witnesses‘.
The law on a beneficiary as a witness is not uniform
In some Australian states and one territory this rule has been abolished. In the other jurisdictions it remains with modifications to allow for specific circumstances. See more below.
The court scrutinises very carefully the circumstances around the execution of a will during the probate process. Even in those jurisdictions where the rule no longer applies, it is preferable to avoid having any potential beneficiary, their spouse, partner or anyone close to them act as a witness to the will in the first place. If you are uncertain seek legal advice.
Beneficiary lost out in NSW because they were a witness
In New South Wales the rule still applies except in some circumstances.
In one case the Court applied the witness-beneficiary rule under s10 of the Succession Act 2006 (NSW) to deny the beneficiary their inheritance under the will. Section 10 sets out the rules on whether an interested witness can benefit from a disposition under a 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 s10 of the Succession Act 2006 (NSW). It is interesting that the Judge observed that the will appeared to have been prepared without legal advice.3
Exceptions to the witness-beneficiary rule
In Queensland, New South Wales, Tasmania and Northern Territory, the legislation in those jurisdictions provides exceptions to the disqualification of a beneficiary who acts as a witness.
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 act as a witness. Not doing so makes it more difficult for future allegations to be made about the will-maker’s testamentary intentions, their capacity at the time and so on. It can avoid lengthy and costly argument on questions about whether the the will-maker knew what they were signing? Was it what they wanted? Did they know what the will said and did they approve of it?