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Can a Beneficiary Witness a Will? (ACT)

There are a number of requirements for a formal will to be valid in the ACT. These include that the will must be in writing (it can be typed, printed or handwritten), that it is signed by the testator and that it is witnessed by two adults. Traditionally, witnesses to a will could not be interested parties; however, a number of Australian states and territories have now abolished this rule. This article deals with whether a beneficiary can witness a will in the ACT.

Can A Beneficiary Witness A Will In the ACT?

In the ACT, unlike in New South Wales and Queensland, a will can be witnessed by any adult, including someone who is a beneficiary of the will. This means that it is common for family members of the testator like children, siblings or the testator’s partner to witness wills.

A person can witness the execution of a will in the ACT provided they:

  • Are over 18;
  • Have legal capacity;
  • Can see, as the testator’s signature must be witnessed visually.

The witnesses to the execution of a will should be capable of being identified and located if they are needed to attest to the fact that the testator signed the will.

Can an executor witness a will in the ACT?

Section 19 of the Wills Act 1968 provides that a person who is an executor of a will is not disqualified from witnessing the execution of the will. 

Can A Beneficiary Witness A Will In Other Jurisdictions?

The law about whether a beneficiary can witness a will varies between different states and territories of Australia.

In South Australia, Western Australia and Victoria, there is no rule preventing a beneficiary from benefitting from an estate where they witnessed the execution of the will. In these jurisdictions, it is common for family members such as spouses and children to act as witnesses.

In Queensland and New South Wales, a will must be witnessed by two independent adults. If a beneficiary witnesses a will in those states, the will is void to the extent that the witness benefits from its provisions. This means that having a beneficiary witness your will may result in partial intestacy. Partial intestacy will occur if the deceased did not include a residue clause in the will, providing for how the remainder of the estate is to be distributed after specific assets have been dealt with.

In the absence of a residue clause, the assets bequeathed to the witness will be distributed according to the laws of intestacy. If the testator included a residue clause, the assets bequeathed to the witness will be distributed along with the remainder of the estate as they have set out in the will.

Challenging A Will in the ACT

Many people do not realise that challenging a will and contesting a will are different. A person challenges a will when they dispute the will’s validity. This may be because there are doubts about the testator’s testamentary capacity, because there is evidence of fraud or undue influence or because the will was not executed in accordance with the formal requirements – for example, the testator had not reached the age of 18.

When a person challenges a will, the Supreme Court must look at the evidence surrounding the execution of the will and decide whether the will is valid and can be upheld.

If the will is upheld, the estate can be administered according to its terms. If the will is not upheld, the deceased estate must be dealt with according to the laws of intestacy.

Contesting A Will in the ACT

A person contests a will if they believe its provisions are unfair. This usually occurs when a close family member of the deceased claims they have not been adequately provided for under the will and seeks further provision out of the deceased estate. A will may be contested even where there is no dispute as to its validity.

Seek Advice When Making A Will in the ACT

If you are thinking of making a will, it is advisable to seek legal advice to ensure the will complies with the formal requirements and will be perceived as fair. This reduces the chances of the will being challenged or contested. Although there is no rule preventing beneficiaries from witnessing wills in the ACT, there are other bases on which the validity of a will may be called into question, particularly where it was prepared without the involvement of a lawyer. Contact Armstrong Legal for thorough, timely advice about wills and estates matters in ACT.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.

Fernanda Dahlstrom

This article was written by Fernanda Dahlstrom

Fernanda Dahlstrom has a Bachelor of Laws, a Bachelor of Arts and a Graduate Diploma in Legal Practice. She has also completed a Master’s in Writing and Literature. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory and in family law in Queensland.

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