Legal Tip 229: Do witnesses need to know they are witnessing a will signing?

Discussion in 'Wills & Estate Planning' started by Terry_w, 2nd Aug, 2019.

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  1. Terry_w

    Terry_w Lawyer, Tax Adviser and Mortgage broker in Sydney Business Member

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    There is no requirement for a person making a will to tell the witnesses that they are witnessing signatures on a will. You can cover each page as you sign as the witness are only there to witness your signature. They have no need to read the document or even know it is a will.

    S 7 Succession Act 2006 (NSW)

    SUCCESSION ACT 2006 - SECT 7 Must witnesses know that they are signing a will?
     
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  2. Paul@PAS

    Paul@PAS Tax, Accounting + SMSF + All things Property Tax Business Plus Member

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    I had a person (lawyer) refuse to act as a witness as they didnt want to infer that they were present to give advice on a will for which they were only witnessing. Made sense to me.
     
  3. datto

    datto Well-Known Member

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    It makes sense not to tell the witness what they are signing.

    Imagine in Mt Druitt for example.

    They know it's your will.

    They witness your signature.

    They sign as witness.

    You turn your back.

    They knock you on the head.

    They put their relo on the will as beneficiary.

    Next thing, they're sporting a new car and a 3 bedda ex houso.
     
  4. Mike A

    Mike A Well-Known Member

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    they even covered the words witness.

    was a document transferring all assets to @datto.

    3 weeks later @datto was now in possession of a pair of high grade Ugg Boots and a cupboard full of flannies. Tragic story.
     
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  5. Scott No Mates

    Scott No Mates Well-Known Member

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    We both know that you're not going to find anyone in the Druie to admit they were a witness for fear that they were withholding info. :eek:

    I did nothing, I see nothing, I know nothing. Hey, I wasn't anywhere near the place officer. ;)
     
  6. Perp

    Perp Well-Known Member

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    It doesn't make much sense to me, as it's pretty easy to establish who drafted the will and gave advice on it. To have a claim against the lawyer, the litigant would need to establish that the lawyer did draft or give advice on the will, and... they wouldn't be able to prove any such thing.
     
  7. Terry_w

    Terry_w Lawyer, Tax Adviser and Mortgage broker in Sydney Business Member

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    There was a case a few years ago where a lawyer witnessed mortgage docs of some sort and was deemed liable for not explaining something in them to the client. Based on this is might be a good idea to decline to witness docs or to advise in writing that the person should seek legal advice and none as been given.
     

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