30/05/2012

Many people are unsure who can witness their Will. The key question concerns whether a beneficiary can be witness. We recently had an adviser asking whether they or anyone in their practice could witness the Will of their client.

Witnessing a Will is a technical matter of having the testator sign the written document in the actual presence of at least two witnesses. The formality of signing the Will also requires that the witness must be able to be identified as they can be called on to verify that they 'attested' the Will, namely, to confirm the testator signed the Will voluntarily and that the signature is that of the testator.

While this sounds simple enough, there are certain things to look out for when choosing who should be a witness to the Will.

The so-called 'interested witness' rule states that a disposition of property, ie a gift to a beneficiary, is void if that beneficiary was a witness to the Will. The husband or wife of an attesting witness will also lose any benefit under the Will if he or she was married to the witness when the Will was executed.

The basis of the rule is that allowing a beneficiary to be a witness provides them an opportunity to exert undue influence over the testator.

However, there are exceptions to the rule and ACT, South Australia and Western Australia have abolished it completely.

The New South Wales Succession Act section 10 states that a beneficiary can be a witness if there are at least two other witnesses who are not 'interested witnesses' to the Will, if all beneficiaries affected by the disposition consent in writing to the gift, or if the Court is satisfied that the testator knew and approved the disposition.

The Queensland, Northern Territory and Tasmanian legislation is similar to NSW, and in Victoria a person who witnesses the Will of their spouse or domestic partners is not disqualified from taking a benefit under the Will.

In New South Wales a beneficial disposition also does not include a direction in a Will for the payment of reasonable remuneration to an executor, administrator, legal practitioner or other person acting in relation to the administration of the testator's estate. There are usually other requirements for including such directions in a Will, especially if such payments are in addition to specific gifts or legacies to the practitioner.

In other States, the effect of the Sacks v Gridiger case may mean that a direction in a Will to pay professional charges would be lost if the person so entitled acts as a witness. While such a benefit may not be lost if one member of the firm is entitled under the will to charge and another member signs as a witness, most practitioners consider it is better to avoid doing this.

Where an adviser is named in the Will, and may be providing services to the estate, there is a question of whether they could be an 'interested witness' and if so, whether any of the exceptions to the rule would apply. There is also a question of whether the disposition is a gift or simply a reasonable remuneration expense incurred in administering the Will.

If the Will is contested, the Court would review such issues and ultimately determine whether the adviser and their practice would be entitled to receive any benefit under the Will.

It is preferable to avoid the possibility of having a Will contested on this issue. Having 'disinterested parties'  be the witnesses to a Will makes good sense. 

If you have any questions in relation to this article, please contact TOWNSENDS BUSINESS & CORPORATE LAWYERS on (02) 8296 6222.