Lawyers often make things harder (and more expensive) than they need to be. We offer probate and estate administration services to suit your needs. Click below to find out more.
If you've written out your wishes for your estate and you're at the final stage of making a Last Will & Testament, signing a Will is the last thing you need to do before it becomes a legal document. If you haven't got to that step just yet, you can make a Will using our free online Will builder here.
To speak with our team of estate planning experts at any stage, call (03) 9917 3388.
The legal formalities to make a valid Will must be followed closely. This article explains exactly what needs to happen when signing a Will, before it can become a valid legal document in Australia. We will also explain who can witness the signing of a Will and what's required.
Witnessing your Will
After you have finished filling out your Will, it must be printed (if filled out online), then signed. Signing the Will correctly is vital to ensure it is valid.
A Will is not legally valid in Australia unless it’s signed by the Will-maker (testator) in the presence of two independent adult witnesses. Both witnesses MUST be present at the same time the Will-maker signs the document, as it's their job to formally witnesses the event of signing. Consequently, a Will is not a legal document if it's unsigned, or if there is only one witness.
Most commonly, the Will-maker will write their Will when the witnesses are not present. But you must not date or sign the document until both of the witnesses are present and are watching you do so. However, the witnesses do not need to know the contents of the Will in order to sign it. In addition, a witness doesn't even need to know that the document is a Will!
How to sign your Will
In the presence of your two witnesses, insert the current date on the designated place in your Will.
The three of you must watch each other sign the Will, using the same pen. Use the same black or dark blue pen and take turns signing and filling in the details.
It is common for a Will to be longer than one page, therefore any subsequent pages must be signed and witnessed in the same way as the first page of your Will – and by the same witnesses – or they will not be considered part of the legal document. Signing each page of the Will is extremely important, to ensure absolute certainty that extra pages have not been inserted, removed or replaced later.
The witnesses need to sign on the bottom of each page and on the execution page of the Will where indicated. On the execution page, each witness must print their full name, address and occupation beneath their signature.
Aside from not having a witness sign the document, the Will-maker can sometimes pass away without themselves having finalised and signed it. If it’s not signed, it’s simply not valid. So ensure you don’t forget this vital step.
Who can be a witness to signing your Will?
You don’t need anyone official, like a Justice of the Peace (JP), to witness signing your Will.
Witnesses must be over 18 years of age, mentally competent and be able to see the Willmaker sign the Will.
Who can't be a witness to signing your Will?
As mentioned above, any adult with full mental capacity may be witness to your Will, however there are some exceptions.
A witness should be independent from you. That is a witness should not be an executor or beneficiary under the Will or related to you or any executor of the Will or beneficiary under the Will. This is often the case with spouses or partners. It's safest to have someone else witness your Will.
In some Australian states and territories, a 'witness-beneficiary rule' applies. This is where a beneficiary cannot be a witness, otherwise they will be disqualified from receiving their gift in the Will. The same goes for their spouse or partner.
Although some Australian states permit beneficiaries to also be witnesses, choosing someone else to witness ensures impartiality. This is important when it comes to Wills, particularly if it is contested in court. So having someone who is not a beneficiary witness your Will protects them from accusations of undue influence.
If you are uncertain, seek legal advice. To speak with our team of estate planning experts at any stage, call (03) 9917 3388.
Why is witnessing a Will so important?
If a Will is contested in court, the signing and witnessing process may be questioned, so the Will may be deemed invalid if the correct process has not been followed.
In the event that the validity of your Will is challenged after your death, your witnesses may be called upon in the Probate Court (a section of the Supreme Court).
Checklist for signing your Will
- Have you read and understood your Will?
- Do you have 2 adult witnesses to witness you sign and date your Will?
- Have you dated the Will?
- Have you signed each page of your Will in the presence of 2 witnesses?
- Have both witnesses signed each page of the Will in your presence?
- Have you stored your Will in a safe place and told your executors where your Will is stored?
Final thoughts on making a Will
No writing, markings or alterations should be made on a Will after it is signed. If there are any markings or any alterations required, it is best to amend your Will, reprint and sign your Will again. No staples, pins or paper clips should be attached to a Will.
We hope this article provides a better understanding of what's required to witness the signing of a Will, to ensure you make a Will that is legally valid in Australia.
To learn more, visit the Bare Law website or chat with our estate team for a free consultation, on (03) 9917 3388. Or to pre-pay your funeral, call 1800 202 901 or visit bare.com.au.This article is not legal advice. You should speak with your solicitor or accountant for specific advice on your personal or financial situation.