What If A Beneficiary Witnessed The Will? (NSW)

There are a number of requirements for a formal will in New South Wales. These include that the will is in writing, that the will is signed and that the will is witnessed by two independent witnesses who are both over 18. This article deals with what happens where a beneficiary witnessed the will in New South Wales.

Who Can Witness the execution of A Will?

Anyone can witness the execution of a will in NSW provided they are:

• Over the age of 18;
• Not a beneficiary of the will;
• A person who has legal capacity;
• A sighted person, as the signature must be witnessed visually (section 9, Succession Act 2006).

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.

What Is A Beneficiary?

A beneficiary is someone who receives all or some of the distribution from a person’s deceased estate. Beneficiaries are often the deceased’s spouse, children, other family members and friends.

Why Does It Matter If A Beneficiary Witnessed The Will?

The witnesses to a will should be ‘independent’. This means that the witnesses must not be beneficiaries of the will. This is because where a beneficiary witnesses the execution of a will, they may have influenced the testator’s decisions about the estate’s distribution.

Legislation

Section 10 of the Succession Act 2006 provides that where an interested witness witnesses the execution of a will, the disposition is void to the extent that it benefits that witness.

However, the disposition in favour of the interested witness is not void if:

• At least two people who were not beneficaries also witnessed the will; or
• All the people who would benefit if the disposition in favour of the witness was voided consent in writing to the distribution of the disposition and have the capacity to consent;
• The court is satisfied that the will-maker knew and approved of the disposition and made it freely and voluntarily.

Professional Charges

Where a testator includes a provision in their will for the payment of professional charges out of the deceased estate, this provision is likely to be void if the person who is to receive the payment was also a witness to the will’s execution. 

This may occur where the testator makes provision under their will for the executor or trustee of their estate to receive payment for the time they spend carrying out the duties of that role. Where this occurs, there may also be uncertainty as to whether the provision should be interpreted as a gift or simply as payment for the person’s professional services.

Partial Intestacy where beneficiary witnessed the will

Where a beneficiary witnessed a will and some of its provisions are therefore void, this may result in partial intestacy. This will be the case if the deceased did not include a residue clause, setting out how the remainder of the estate is to be distributed after the distribution of specific assets.

In the absence of a residue clause, the assets referred to in the part of the will that is void will be distributed according to the laws of intestacy.

If the testator included a residue clause in their will, the assets referred to in the voided provisions will be distributed along with the remainder of the estate as provided in the will.

Other Jurisdictions

The law concerning what happens where a beneficiary witnessed the will is different in different states and territories of Australia. 

In the ACT, South Australia, Victoria and Western Australia, there is no rule preventing a beneficiary from inheriting from an estate where they witnessed the will. 

Avoid Complications From Beneficiary Witnessing The Will

If you are thinking of making a will, it is advisable to have the document witnessed by two entirely disinterested parties to avoid the possibility of it being contested on the basis that a beneficiary witnessed the will. 

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