Who Can Witness a Will? (And Why Beneficiaries Shouldn’t)

Ensuring Your Will is Legally Valid in Australia

When drafting your will, it’s crucial to ensure that it is legally valid. One of the most common mistakes people make is choosing the wrong witnesses. In Australia, who can witness a will is strictly regulated, and failing to follow the correct procedure could result in part—or all—of your will being deemed invalid.

Here’s what you need to know about selecting appropriate witnesses and why beneficiaries should never act as witnesses to your will.

Who Can Legally Witness a Will in Australia?

To be valid, a will must be signed in the presence of two witnesses, who must be:

✅ Over 18 years of age
✅ Present at the same time when the will-maker signs
✅ Not listed as a beneficiary in the will
✅ Mentally competent

Witnesses do not need to be lawyers or Justices of the Peace (JPs), but they must be disinterested parties, meaning they gain no benefit from the will.

Who Should NOT Witness a Will?

🚫 Beneficiaries – Anyone receiving an inheritance under the will (or their spouse) should not act as a witness.

🚫 Spouse/Partner of the Will-Maker – Even if they are not a beneficiary, their involvement could raise legal concerns.

🚫 Children or Grandchildren of the Will-Maker – Particularly if they are included in the will.

🚫 Executors – While executors can legally witness a will, it’s best to avoid this to prevent potential disputes.

🚫 Anyone Mentally Incapable – A witness must be of sound mind and able to understand the importance of what they are witnessing.

Why Beneficiaries Should NOT Witness Your Will

While it may be tempting to ask a family member to witness your will, doing so can jeopardise their inheritance. Under Australian law, if a beneficiary witnesses a will, a court may rule that:

❌ Their gift is invalid – The beneficiary may not receive what was left to them.
❌ The will is challenged – Other beneficiaries (or even non-beneficiaries) may argue that the will was improperly executed.
❌ Allegations of undue influence – If a beneficiary was present at the signing, others might claim they pressured the will-maker.

By choosing independent witnesses, you protect the integrity of your will and reduce the risk of legal complications.

Who Should You Choose as a Witness?

To ensure your will is valid and legally binding, choose two independent witnesses, such as:

🔹 Friends or neighbours (who are not beneficiaries)
🔹 Work colleagues
🔹 A Justice of the Peace (JP), solicitor, or accountant
🔹 Local community members (such as a doctor, pharmacist, or bank officer)

Having your will properly witnessed is one of the most critical steps in estate planning. If you’re unsure, it’s always best to seek legal advice to avoid costly mistakes.

Final Thoughts

Choosing the right witnesses is a simple yet essential part of ensuring that your will stands up in court. By selecting independent, disinterested witnesses, you can prevent disputes and ensure that your wishes are honoured.

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