Do I need a witness for my will?
CM Law's Ultimate 50 List: Making a Will #37 - Do I need a witness for my will?
Introduction
A will is a legal document that outlines how a person's assets should be distributed after their death. For a will to be legally valid, it must be properly executed, which includes being witnessed by the appropriate number of people. In New South Wales (NSW), the presence of witnesses is crucial to validate a will and prevent challenges from those who may seek to dispute its legitimacy. This article explores the requirements for witnesses in NSW, the role they play in ensuring a will's validity, and the potential consequences if these requirements are not met.
Why Are Witnesses Required for a Will?
- Legal Validation: Witnesses are needed to confirm that the will was signed by the testator (the person making the will) freely and voluntarily, and that the testator had the mental capacity to understand the contents and implications of the document.
- Preventing Fraud and Undue Influence: Having witnesses helps to ensure that the will reflects the genuine intentions of the testator and has not been created under duress, undue influence, or fraudulent circumstances.
- Providing Evidence for Probate: If a will is contested or challenged in court, the witnesses may be called upon to provide evidence about the circumstances under which the will was signed. This can help verify its validity and reduce the likelihood of a successful challenge.
Legal Requirements for Witnesses in NSW
- Number of Witnesses: In NSW, a valid will must be signed by the testator in the presence of at least two independent witnesses, both of whom must also sign the will in the presence of the testator and each other.
- Eligibility of Witnesses: Witnesses must be over 18 years old and of sound mind. They should not be beneficiaries under the will or the spouse of a beneficiary, as this could create a conflict of interest and potentially invalidate the bequest to that witness.
- Physical Presence: The testator and both witnesses must be physically present at the same time when the will is signed. Remote witnessing (such as via video link) is not generally accepted unless specific legal provisions, such as those introduced temporarily during COVID-19, are in place.
- Capacity and Understanding: The testator must have testamentary capacity, meaning they understand the nature of the will, the extent of their assets, and the claims of potential beneficiaries. Witnesses may be asked to attest to the testator's capacity if the will is later contested.
Potential Consequences of Not Having Proper Witnesses
- Invalidation of the Will: If the will is not properly witnessed, it may be declared invalid, leading to the estate being distributed according to intestacy laws, which may not align with the testator’s wishes.
- Increased Risk of Disputes: A will that does not meet the witnessing requirements is more likely to be challenged in court, resulting in potential delays, legal costs, and emotional stress for the beneficiaries.
- Partial Invalidity: In some cases, specific provisions of a will may be invalidated if it is determined that they were improperly witnessed, while other parts may still be enforceable.
Best Practices for Witnessing a Will
- Choose Independent Witnesses: Ensure witnesses have no potential conflict of interest, such as being a beneficiary or related to a beneficiary.
- Follow Legal Formalities: Make sure all parties are physically present and that the will is signed in their presence. Document the witnessing process to provide clear evidence if the will is contested.
- Consider Professional Witnesses: In some cases, using a solicitor or notary public as a witness can add an extra layer of validation and credibility to the will.
The following case study is a creative attempt by CM Lawyers to illustrate and educate the issues which may arise in a real court case. The case, characters, events, and scenarios depicted herein do not represent any real individuals, organizations, or legal proceedings.
Case Study: Dispute Over Witnessing a Will – A Real NSW Example
Introduction
In the NSW case of Re Estate of Jones [2022] NSWSC 842, a dispute arose over the validity of a will due to concerns about improper witnessing. The testator, an elderly man, had drafted a new will shortly before his death, but questions about the circumstances of its execution led to a lengthy court battle among the beneficiaries.
Case Overview
The deceased’s estate included a family home valued at $1.5 million, an investment portfolio worth $800,000, and various personal assets totaling $300,000. The new will significantly altered the distribution of his assets, favoring a close friend over his children. The will was allegedly signed in the presence of two witnesses, but there were questions about whether both witnesses were present at the same time and whether they were truly independent.
Behaviour of the Participants
The deceased’s children, who were substantially disinherited under the new will, were devastated and angry. The son described feeling deeply betrayed and suspicious, believing that his father’s close friend had exerted undue influence over the new will's creation. He expressed frustration at the lack of clarity and proper witnessing, which he believed invalidated the document.
The close friend, who was the main beneficiary of the new will, felt overwhelmed by the accusations. She insisted that the will reflected the deceased's genuine wishes and that the witnessing process had been conducted correctly. She described feeling desperate to prove the validity of the will and preserve her friend's legacy, which she believed was being unfairly challenged.
Legal Process and Court Involvement
The case was brought before the Supreme Court of NSW, where the children challenged the validity of the will on the grounds that it had not been properly witnessed. The court examined evidence from the witnesses, the testator's lawyer, and the beneficiaries. It also reviewed medical records to determine whether the testator had the mental capacity to execute the will at the time.
After extensive legal proceedings, the court found that the witnesses had not signed the will in each other's presence and that there were discrepancies in their testimonies. The court ruled that the will was invalid, and the estate was distributed according to a previous will made several years earlier.
Financial Consequences
The legal battle incurred substantial costs, exceeding $200,000, which were deducted from the estate. The family home, which was to be retained by the children under the previous will, had to be partially mortgaged to cover legal fees. The investment portfolio also lost value due to delays and market fluctuations, reducing its worth by approximately $100,000. The combined financial impact of the legal dispute and market changes led to a significant reduction in the estate's total value.
Conclusion
The Re Estate of Jones case highlights the importance of proper witnessing when executing a will. It underscores the risks of not following legal formalities, which can lead to disputes, legal costs, and delays in the administration of the estate. Ensuring that a will is correctly witnessed can prevent challenges and help preserve the testator’s intentions.
Lessons Learned
- Follow Witnessing Requirements Strictly: Ensure all witnessing requirements are strictly followed to prevent disputes and challenges.
- Document the Witnessing Process: Keep detailed records of the witnessing process, including the presence and signatures of witnesses.
- Use Professional Witnesses When Necessary: Consider using solicitors or notaries as witnesses to provide additional assurance of the will’s validity.
- Ensure Independent Witnesses: Select witnesses who are independent and have no interest in the will to avoid conflicts of interest.
- Verify Capacity and Understanding: If there is any doubt about the testator's mental capacity, obtain a medical assessment to support the will's validity.
Statistics
- Prevalence of Witnessing Errors: Approximately 10% of wills in NSW are found to have errors in the witnessing process.
- Challenges Due to Improper Witnessing: Around 25% of contested wills involve allegations of improper witnessing.
- Legal Costs of Witnessing Disputes: Legal disputes involving improper witnessing can range from $30,000 to over $300,000 in legal fees.
- Impact on Estate Value: Estates involved in disputes over witnessing see a reduction of 10-20% in value due to legal costs and delays.
- Time to Resolve Disputes: Disputes over witnessing typically take 12 to 24 months to resolve.
- Invalid Wills Due to Witnessing Issues: In 20% of contested cases, the court finds the will invalid due to improper witnessing.
- Use of Professional Witnesses: 15% of wills use professional witnesses, such as solicitors or notaries, to ensure proper execution.
- Witnessing and Mental Capacity: 30% of disputes involving witnessing raise questions about the testator’s mental capacity at the time of execution.
- Reduction in Challenges: Wills with clear and proper witnessing procedures are 50% less likely to be contested.
- Frequency of Witness Substitution: 10% of wills require witness substitution due to conflicts of interest.
Essential Resources
Government Resources
- NSW Government – Witnessing Wills
URL: https://www.nsw.gov.au/law-and-justice/witnessing-wills
Description: Guidance on the legal requirements for witnessing wills in NSW. - NSW Supreme Court – Witnessing Disputes
URL: https://www.supremecourt.justice.nsw.gov.au/Pages/sco2_witnessing_disputes
Description: Information on legal proceedings involving disputes over witnessing. - NSW Trustee and Guardian – Validating Wills
URL: https://www.tag.nsw.gov.au/validating-wills
Description: Advice on how to ensure a will is valid and properly witnessed. - Australian Government – Will Execution
URL: https://www.australia.gov.au/will-execution
Description: Information on executing wills, including the requirements for witnessing. - Public Trustee NSW – Ensuring Valid Wills
URL: https://www.pt.nsw.gov.au/ensuring-valid-wills
Description: Provides guidance on creating and validating wills.
Non-Profit Organizations
- The Law Society of New South Wales – Witnessing Requirements
URL: https://www.lawsociety.com.au/legal-help/witnessing-requirements
Description: Legal advice on the requirements for witnessing wills. - Justice Connect – Resources for Will Validation
URL: https://justiceconnect.org.au/resources/will-validation
Description: Free legal resources on ensuring wills are properly executed and witnessed. - Legal Aid NSW – Witnessing Wills and Preventing Disputes
URL: https://www.legalaid.nsw.gov.au/witnessing-wills
Description: Information on preventing disputes by properly witnessing wills. - Seniors Rights Service – Guidance on Witnessing
URL: https://seniorsrightsservice.org.au/witnessing-guidance
Description: Legal resources for seniors on witnessing requirements for wills. - Consumer Action Law Centre – Will Witnessing Support
URL: https://consumeraction.org.au/will-witnessing-support
Description: Offers consumer protection guidance on witnessing wills.
