Can a Beneficiary Witness a Will? (WA)

There are a number of requirements for a formal will to be valid in Western Australia. 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 jurisdictions have now abolished this rule. This article deals with whether a beneficiary can witness a will in WA.

Can a Beneficiary Witness A Will In WA?

In WA, unlike in some other jurisdictions such as New South Wales and Queensland, a will can be witnessed by any adult, including someone who is a beneficiary. 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 WA provided they:

• Are over 18;
• Have legal capacity;
• Can see, as the testator’s signature must be witnessed visually (section 11, Wills Act, 1970).

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 a Beneficiary Witness a Will In Other Jurisdictions?

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

In the ACT, SA and Victoria, there is no rule preventing a beneficiary from benefitting from an estate where they witnessed the execution of the will so in these jurisdictions 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, the result may be 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

Many people do not realise that challenging a will is very different to contesting a will. A person challenges a will when they dispute the validity of the document. This may be because there are doubts that the testator had 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’s signature was not witnessed.

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

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

Contesting a will

A person contests a will if they believe the provisions of the will 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 seek further provision out of the estate. A will may be contested even where there is no dispute as to the validity of the document.

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 WA, 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 matters in WA.

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