Updated 27 October 2026
CM Law's Ultimate 50 List: Making a Will #37 - Do I need a witness for my will?
CM Law’s Ultimate 50 List: Making a Will
Yes — an ordinary NSW will needs two witnesses
For an ordinary will made in NSW, you generally need at least two witnesses and a signing procedure that satisfies the Succession Act 2006. One witness is insufficient. Choosing suitable people matters, but so does what everyone actually does when the document is signed.
An online form or will kit does not remove these requirements. A completed template can still create problems if signatures are collected incorrectly, a beneficiary witnesses a gift to themselves, or the document does not reflect the will-maker’s instructions. Have a lawyer check both the wording and the planned execution.
What must happen when the will is signed?
Section 6 of the Succession Act requires a written will signed by the will-maker, or by another person in the will-maker’s presence and at their direction. The signature must be made with the intention of executing the will.
The will-maker must sign, or acknowledge their signature, before at least two witnesses who are present together. At least two witnesses must then attest and sign in the will-maker’s presence. The witnesses do not have to sign in each other’s presence, although keeping everyone together throughout is a sensible practical safeguard.
Taking an already signed document to one neighbour and later to another does not satisfy the requirement for both witnesses to be present together for the signing or acknowledgment. Ask a lawyer to supervise any procedure involving an existing signature.
Who is an eligible witness?
Choose two independent adults aged 18 or over who can observe the signing and understand their role. This is prudent practice; sections 6–10 do not impose an express 18-year minimum for witnesses. A suitable friend, neighbour, colleague or solicitor’s staff member may assist. An ordinary will does not require a witness to hold a professional qualification or be a justice of the peace.
Section 9 excludes a person who cannot see and attest that the will-maker has signed the document. Do not assume every disability prevents witnessing: the relevant issue is whether the person can perform the required task. Choose witnesses who can be contacted later if evidence is needed.
Under section 7, a witness need not know that the document is a will. Witnessing does not require approving the gifts or reading the private contents.
Can a beneficiary or their spouse witness?
Avoid using anyone who receives a gift under the will. Under section 10, a beneficial gift to an interested witness is generally void unless an exception applies. This does not automatically invalidate the whole will.
Exceptions include having two other witnesses who are not interested witnesses; written consent from everyone who would benefit directly if the gift failed, provided they have capacity to consent; or a court finding that the will-maker knew and approved the gift and made it freely and voluntarily. These are matters for legal assessment, not assumptions to make at the signing table.
The State Library of NSW’s will-making guide confirms that a beneficiary’s spouse can witness. A family relationship alone is not an automatic prohibition. Nevertheless, witnesses unconnected with the gifts are preferable because they reduce questions about personal interests or influence.
Can an executor witness the will?
Appointment as executor does not, by itself, disqualify someone from witnessing. However, an executor who also receives a gift faces the interested-witness rules. Many people appoint a spouse or adult child as both executor and beneficiary, making independent witnesses the safer choice.
Section 10 separately excludes reasonable remuneration for administering the estate from its definition of a beneficial disposition. Have your lawyer check any payment or gift clause rather than assuming every benefit described as an executor’s payment falls within that exception.
A practical checklist for signing in person
1. Finalise the document first. Read it carefully, resolve blanks or inconsistencies, and check that the beneficiaries, executors and gifts reflect your instructions. Arrange suitable witnesses before signing.
2. Gather everyone together. Follow your lawyer’s execution instructions so the required signing or acknowledgment happens before both witnesses, and each witness signs in your presence. Avoid interruptions or collecting signatures later.
3. Record the details clearly. Dating the document, printing witnesses’ names and addresses, and following directions about each page help establish what happened. These practical precautions should not be confused with the precise statutory requirements.
4. Protect the original. Do not backdate signatures, substitute pages or make handwritten changes afterwards without advice. Store the completed original safely and tell your executor where it is kept.
Online wills still need a proper signing process
Legal Aid NSW warns that failing to follow will-kit instructions can leave a will invalid. Downloading a completed form is only part of the task. Check the document’s suitability for NSW, its instructions and the witnessing arrangements with a lawyer before relying on it.
If you have already completed an online will, bring the entire document to the appointment and explain exactly how it was signed. Include who was present, whether everyone could see the relevant acts, and whether any witness receives a benefit. Do not conceal a procedural mistake or try to repair it by adding a name afterwards.
Can witnesses attend by video link?
Yes. NSW made remote witnessing permanent in November 2021. The Electronic Transactions Act 2000 permits audio visual witnessing when its requirements and the underlying will formalities are met. A casual video call or a recording sent afterwards is insufficient.
NSW Government guidance requires the witness to observe signing in real time, sign the document or an exact copy, reasonably satisfy themselves that it is the same document, and endorse how it was witnessed and compliance with section 14G. Arrange both witnesses’ participation around the will’s simultaneous-presence requirement.
Retain every original signed or endorsed counterpart page. Remote witnessing provisions do not themselves authorise electronic signatures. Do not assume clicking an e-signature button produces a valid will. Ask a lawyer to organise the process, including identification, document exchange and the required endorsement.
Capacity and freedom from pressure remain essential
Two witness signatures cannot cure a lack of testamentary capacity or coercion. Witnesses may provide useful observations, but their signatures are not a medical assessment or a guarantee that the will cannot be challenged.
Legal Aid NSW explains that mild dementia does not necessarily prevent someone making a will. If understanding, communication or pressure is a concern, obtain legal advice before signing. A lawyer can assess the circumstances and arrange medical input where appropriate. If the will-maker cannot read or physically sign, seek a tailored procedure that records how their instructions and approval were established.
A verified NSW case: Estate Yee
In Estate Yee [2015] NSWSC 1574, a beneficiary was one of three witnesses to a handwritten testamentary document. At paragraph 13, the Supreme Court explained that two other witnesses were not interested witnesses, bringing the arrangement within section 10(3)(a). The beneficiary’s involvement therefore did not prevent the document taking effect.
The Court ultimately admitted the handwritten document as a codicil to an earlier typed will. The main dispute concerned how the documents operated together, rather than failed witnessing. The case shows why the exact arrangements matter; it does not suggest that using a beneficiary is advisable or that adding signatures later automatically fixes a defective will.
What if the witnesses or procedure were wrong?
If the will-maker is alive and has capacity, seek advice promptly about proper re-execution or a replacement will. Preserve the existing documents until the lawyer advises what to do. A codicil also requires proper execution.
After death, section 8 may allow the Supreme Court to recognise an informal will, but this is not automatic. A beneficiary-witness issue under section 10 requires separate consideration. Preserve originals, drafts, messages and witness details. Depending on the outcome, an earlier will or intestacy rules may become relevant.
Speak with Christine about eligible witnesses
Christine Manolakos and the CM Lawyers wills and estates team can review your proposed witnesses, document and signing arrangements. Contact CM Lawyers before signing or if you are concerned about an existing will. This guide should always be checked by a lawyer against your circumstances, especially where gifts to witnesses, capacity concerns or remote execution are involved.
General information about NSW law only. Have your will and execution arrangements checked by a lawyer for your circumstances.
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