What are the Requirements for Witnessing a Will in New South Wales?

In New South Wales, the requirements for witnessing a Will are outlined in the Succession Act 2006 (NSW). The key points are contained in Sections 6, 9 and 10 of the Succession Act which are the following:

1. Number of Witnesses: A Will must be witnessed by at least two adult individuals who are present at the same time as the testator (the person who makes the Will when the testator signs their Will (Section 6(a)). This means that if the testator and the witnesses are all in the same room and the testator is signing their Will, then the witnesses must remain present and are not allowed to leave the room at any point during this time.

2. Presence: The testator must sign the Will in the presence of the two witnesses. Alternatively, if another individual is signing the Will under the direction of the testator, then the testator must acknowledge the signature in the presence of the two witnesses. (Section 6(b))

3. Witnesses' Signatures: The witnesses must attest and sign the Will in the presence of the testator. However, it is not necessary for the witnesses to sign the Will in the presence of each other (Section 6(c)). This means that if the testator and the witnesses are all in the same room and one of the witnesses is signing the Will, then the other witness is permitted to leave the room at any point during this time. However, the testator must remain present and are not allowed to leave the room during this time.

4. Eligibility of Witnesses:

(a)   Visual Capability (Section 9) : A person who is blind or visually impaired and therefore cannot see and attest that the testator has signed their Will cannot act as a witness.

(b)   Not be an interested witness (Section 10): It is ideal that a witness to the Will is not an “interested witness” (a witness is also a beneficiary (link) under the Will). If a witness is an “interested witness” then any gift they are due to receive will fail unless the following conditions are met:

• If there are more than two witnesses to the Will and at least two of the witnesses are not interested witnesses.
• All of the other beneficiaries who would benefit directly from the voidance of the gift to the interested witness provides written consent for the gift to be made to the interested witness (but only if the beneficiaries have capacity to provide such consent).
• The Court is satisfied that the testator knew and approved of the gift being made to the interested witness, and that the testator made the gift to the interested witness freely and voluntarily.

Contact us for a free thirty-minute conversation with a Wills and Estates Lawyer.

Any information on this website is general in nature and should not be taken as personal legal advice. We recommend that you speak to a lawyer about your personal circumstances.

Photo by Gabrielle Henderson on Unsplash