What happens if a will was signed without any witnesses?

PUBLISHED 21 Dec 2019

While drafting and signing a valid Will is a fairly easy – and very necessary – process, there are certain aspects that need to be just right for it to be valid. One of these aspects that must be followed to the letter involves having witnesses sign the Will.

Among other requirements for making a valid Will, at least two people must be present to witness the will-maker’s signing the Will. While in the presence of the will-maker, at least two of these witnesses must also attest and sign the Will acknowledging the will-maker’s signature.

If the Will was not properly witnessed or signed by a witness, the court has the discretion to dispense with the formal requirements for the execution, alteration, or revocation of a Will. In many instances, the estate may be dealt with as if there was no Will.

However, if the court finds that the document accurately states the desired intentions of the deceased, it may rule the Will is valid.

Other rules witnesses must follow when signing a Will

These two witnesses do not have to be present at the same time to attest to the Will, but they must both see the Will-maker signing the Will at the same time. It’s best practice to typically have the Will-maker and witnesses all sign the document at the same time and in each other’s company, preferably all using the same pen too.

The witnesses do not have to know that the will-maker is signing a Will. Just so long as the person sees the signing of the document.

There are several reasons for requiring two witnesses for the signing of a Will. First, witnesses ensure that the will-maker had the mental capacity and situational wherewithal to know that they’re executing a legal document.

Another reason is to ensure that no one was pressuring or unduly influencing the will-maker into signing the document. This ties into the fact that other than the will-maker’s spouse, beneficiaries of the Will are typically not recommended to be a witness to the Will. A beneficiary might be able to unduly influence the will-maker.

While drafting and signing a Will is a fairly routine process most of the time, it’s best to seek legal advice to make sure everything has been done properly. Reach out to Gerard Malouf and Partners today to learn more.

Call us now on 1800 004 878 to book a free appointment with one of my compensation experts, or email your enquiry.