What If a Beneficiary Witnessed The Will? (Vic)

There are a number of requirements for a formal will to be valid in Victoria. These include that the will must be in writing (typed, printed or handwritten), that it is signed by the testator and that it is witnessed by two adult witnesses. Traditionally, witnesses to a will had to be non-interested parties; however, a number of Australian jurisdictions have now abolished this rule. This article deals with the law surrounding the situation where a beneficiary witnessed the will in Victoria.

Who Can Witness A Will in Victoria?

In Victoria, unlike in some other jurisdictions such as Queensland and New South Wales, a will can be witnessed by someone who is a beneficiary. This means that it is common for family members of the testator like children, siblings and spouses to witness wills.

Any person can witness the execution of a will in Victoria provided they:

• Are over 18;
• Have legal capacity;
• Are a sighted person, as the testator’s signature must be witnessed visually (section 10, Wills Act 1997).

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.

Legislation

Section 11 of the Wills Act 1997 provides that a person who witnesses a will is not disqualified from inheriting under the will. The spouse or partner of a person who witnesses a will is also not disqualified from taking a benefit under the will. 

Traditionally, witnesses to a will had to be ‘independent, meaning that they could not be beneficiaries under the will. This was known as the witness-beneficiary rule and it was considered necessary because it was thought that where a beneficiary witnessed a will, they may have influenced the testator’s decision as to how to distribute the estate.  A beneficiary is a person who is entitled to receive all or some of the distribution from a deceased estate. Beneficiaries are often the spouse, children, other family members and friends of the deceased.

Section 11 of the Wills Act abolished the witness-beneficiary rule in Victoria.

What happens where beneficiary witnessed the will in other Jurisdictions

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

In the ACT, SA and WA, like in Victoria, there is no rule preventing a beneficiary from benefitting from an estate where they witnessed the will so family members such as spouses and children often act as witnesses. 

In Queensland and New South Wales, where a beneficiary witnessed the will, the will is void to the extent that the witness benefits from its provisions. This means that where a beneficiary witnessed a will, this may result in partial intestacy. This 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.

Seek advice when making a will

If you are thinking of making a will, it is advisable to seek legal advice to ensure the will is fair and valid and not likely to be challenged or contested. Although there is no rule preventing beneficiaries from witnessing wills in Victoria, there are other bases on which the validity of a will may be called into question. Contact Armstrong Legal for thorough, timely advice about wills and estates. 

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