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Witnessing a Will

A Will must be witnessed by 2 adults. Both witnesses must be present at the time that the testator (Will-maker) signs the Will. However, one witness need not be present when the other witness signs the Will.

If the person is under 18 or has an intellectual disability and the Supreme Court has agreed with the specific terms of the Will, one of the witnesses must be the court registrar.

It is not necessary for a witness to know that they are witnessing a Will. They are witnessing the signature of the person who is signing the Will—not the contents of the Will.

See ss. 7, 8—Wills Act 1997 (Vic)(opens in a new window).

Who can’t be a witness?

A person who can’t see can not be a witness, as they attest that a testator has signed a document.

If a Will was made before 20 July 1998, a witness could also be a beneficiary of the Will without making the Will invalid. However any part of the Will that mentioned that witness would have the same effect as if the Will-maker had died intestate (without making a Will).

This law was abolished from 20 July 1998. Wills now allow a person mentioned as a beneficiary, his/her spouse or any relation to him or her, to sign as a witness. However it is best practice to choose witnesses who have no interest in the estate—that is people who don’t benefit from the Will.

See ss. 10, 11—Wills Act 1997 (Vic)(opens in a new window).

More information

Legislation

There are two Acts that apply in Victoria. The new Act commenced operation on 20 July 1998.

Wills Act 1997 (Vic)

  • s. 7—how should a Will be executed
  • s. 8—not necessary for a witness to know that they are signing a Will
  • s. 10—person who is unable to see can't witness a Will
  • s. 11—spouse or domestic partner can benefit

See Wills Act 1997 (Vic)(opens in a new window).

Wills Act 1958 (Vic)

  • s. 13—if beneficiary signs a Will, the part of the Will that relates to that person shall not apply and that person's interest will follow the rules of intestacy

See Wills Act 1958 (Vic)(opens in a new window).

Updated