Validity of a Will – Who Can Witness a Will

Date: Sep 04, 2012
Document Type: Article

Although it may be blinding obvious, a person who is unable to see or swear he or she saw the testator sign a document may not act as a witness to a Will - section 9 Succession Act 2006. A Will not properly witnessed, may be an invalid Will.

A person must be able to see the testator execute the document to be a competent witness.

A person who is only temporary unable to see is also disqualified as a competent witness, if that person could not see at the time he or she witnessed the will.

Interestingly the witness need not know that the document he or she witnessed is a Will – section 7 Succession Act 2006.

The witness to a will should be a person of good credit and honesty who can if required provide credible evidence of the executor signing the will in their presence.

The witness should also be a person who has no likelihood of being a beneficiary under the Will or on an intestacy. A gift to an interested witness would not invalidate the Will but the gift may be void – section 10 Succession Act 2006.

An executor is a competent attesting witness but any benefit given to the executor under the Will may be void.

A creditor is also a competent witness to a Will. Creditors are still entitled to payment of the debts.

Drafting and proper execution of your Will and considering, investigating and advising the consequences of questionable drafting and execution of a will, to ensure the Will is a valid Will, are matters about which you should instruct your lawyer.

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