A will is one of the most important documents someone can own, as it outlines how their estate should be managed after they pass away. So naturally, it's essential that you make sure your will is not only drafted correctly to reflect your wishes but also signed and witnessed correctly to ensure it is validly upheld. But who needs to witness a will made in Brisbane?
This article takes a look at the legal requirements for witnessing a will made in Brisbane, including who can and cannot act as a witness, as well as other important information. Whether you're creating your own will or helping someone else to do so, this guide provides important information you need to know about witnessing wills, not only in Brisbane but in Queensland generally.
What happens if a will is not witnessed by the correct people?
Choosing the right witness is just as important as choosing the right estate planning lawyer. A will may be deemed invalid if it is not witnessed by the appropriate individuals. If a will is not witnessed correctly or does not comply with other lawful requirements then it will be deemed invalid. If there is no valid will then your estate will be deemed an intestate estate, leaving your estate to be dealt with in accordance with the succession laws which likely will not provide for exactly what you had otherwise intended under your will.
However, even an invalidly witnessed will can be used to prove intention to a court. Under section 18 of the Succession Act 1981 (Qld), a court may declare any document or a part of a document to be a valid will if the court is satisfied that the testator intended the document to form the person’s will despite the witnesses used. This unfortunately means that your friends and family must take the steps of applying to court and proving certain things to the court. This is a costly and time-consuming process that would otherwise be unnecessary, and may give rise to:
the suggestion that witnesses have exerted undue influence on you to sign the will, which leads to uncertainty and the unintentional need to explore and evidence motives of friends and family to the court;
leaving your estate may be more susceptible to challenge by others; or
the need to demonstrate to the court that the invalidly witnessed will should be ordered valid, having regard to circumstantial evidence.
All of the above can be overcome simply by having the will prepared appropriately by a solicitor and ensuring the correct witnesses and witnessing process is adhered to. Usually when you attend with a solicitor to sign a will they will also have the necessary witnessing services available at the same time to ensure it can be validly signed at that appointment.
How to make sure your will is properly witnessed
The Succession Act 1981 (Qld) sets down the formal requirements of what is required to have a validly executed and witnessed will. You must ensure that your will is properly witnessed at the time you make it. This means that two adult witnesses who are not named in the will must sign it. The witnesses must either see you sign the will or acknowledge seeing you sign it and must sign the will in your presence. There are special circumstances where, in exceptional circumstances, a will may be signed and witnessed by some other person at the direction of and in the presence of the person intending to make the will.
The laws existing at the time of this guide provide that if any witness stands to benefit under your will then those parts of the will that benefit the witness are deemed to be void unless certain steps have been taken. It is therefore best to select witnesses who are not related to you or your beneficiaries, and do not benefit under the will themselves. This eliminates the possibility of a later claim that the will was not validly witnessed. If you are unable to locate two independent witnesses, many solicitors offer witnessing services.
There are also a range of other requirements to ensure a will is valid. This is why many people engage solicitors to prepare and settle their will. Not only to ensure the will accurately reflects your intentions in relation to administration and distribution of your estate, but also to ensure they are drafted, executed and witnessed correctly.
Conclusion
As you can see from the above, it is important to ensure that even you will is appropriately drafted and witnessed so as to avoid circumstances that may otherwise be stressful and costly for your family and beneficiaries. With this in mind, it is critical that you understand who can witness your will and how they should do so before signing any legal documents that are intended to be a will.
If you have need for estate planning services, such as drafting of wills or powers of attorney. Please contact our friendly team of solicitors who can prepare personalised documents to meet your requirements. Speak with our estate planning solicitors today! Contact us for a no-obligation discussion about your situation.
Drakos & Company Solicitors
Level 1, 170 Boundary St, West End, Brisbane QLD 4101
Phone: 07 3844 1441