What if a Beneficiary Witnessed the Will? (Qld)

There are a number of requirements for a formal will to be valid. These include that the will must be in writing, that the will must be signed and that the will must be witnessed by two independent witnesses who are both over the age of 18. This article deals with the situation where a beneficiary witnessed the will and examines the consequences of this occurring in Queensland.

Who can witness a will?

Anyone can witness the signing of a will in Queensland provided they fulfil the following requirements:

• They are over the age of 18;
• They are not a beneficiary of the will;
• They have legal capacity;
• They can see.

The witnesses should be able to be identified and located in the event they are needed to attest to the fact that the testator signed the will in front of them.

What is a beneficiary?

A beneficiary is a person who receives all or some of the distribution from a deceased estate. Beneficiaries are often family members and friends of the deceased

Why does it matter if a beneficiary witnessed the will?

The witnesses to a will must be ‘independent’. This means that they must not be beneficiaries under the provisions of the will. This is because where a beneficiary witnesses the signing of a will, there is the possibility that they have influenced the testator’s decisions about the distribution of their estate.

Legislation

Section 11 of the Succession Act 1981 provides that where an interested witness witnesses a will, the disposition is void to the extent that it benefits the witness.

However, the disposition is not void if:

• At least two people who were not interested witnesses also attested to the will; or
• All the people who would benefit from the avoidance of the disposition consent in writing to the distribution of the disposition and have capacity to give this consent; or
• The court is satisfied that the testator knew and approved of the disposition and that it was made freely and voluntarily.

Interpreter benefitting under will

The Succession Act also contains a provision (section 12) that provides that where the services of an interpreter have been used in the process and making a will and a disposition of property is made to the interpreter under the will, that disposition is void.

However, the disposition is not void if:

• All the persons who would benefit from the avoidance of the disposition consent in writing to the distribution of the disposition and have the capacity to give this consent; or
• The court is satisfied that the testator knew and approved of the disposition and that it was made freely and voluntarily.

Professional charges

Where a testator makes provision in their will for a person to be paid professional charges out of the estate, this provision is likely to be void where the person was also a witness to the execution of the will. This may occur where the testator makes provision for the executor or trustee to receive payment for their time spent carrying out the duties of that role. In this situation, there may also be uncertainty as to whether the provision is a gift or simply payment for professional services.

Partial intestacy

Where a beneficiary witnessed a will and part of the will is therefore void, this may result in a situation of partial intestacy. This will be the case where the deceased did not include a residue clause, a clause setting out what is to happen to the remainder of the estate after specific assets have been distributed.

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

If the testator included a residue clause, the assets referred to in the provision that is void will be distributed along with the remainder of the estate.

Other jurisdictions

The law around what happens if a beneficiary witnessed the will is different in different states and territories. In the ACT, South Australia and Western Australia, there is no rule that a beneficiary cannot witness a will. In Victoria, a person may witness a will and still benefit from a disposition under the will.

Avoid complications from beneficiary witnessing the will

It is advisable to have a will witnessed by disinterested parties to avoid the possibility of having the will contested on the basis that a beneficiary witnessed the will. When two independent adults with capacity and vision witness a will, there are unlikely to be any doubts about the validity of dispositions arising from the witnessing of the will.

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