The legal requirements for a formal will in New South Wales are paramount. The Will must be in writing, signed, and witnessed by two independent witnesses over 18; the witnesses must not be beneficiaries of the Will. A beneficiary, who could be the deceased’s spouse, children, other family members, or friends, receives all or some of the distribution from a testator’s deceased estate.
Why Does It Matter If A Beneficiary Witnessed The Will?
When a beneficiary witnesses the execution of a will, there is a significant risk that they may have influenced the testator’s decisions about the estate’s distribution, underscoring the need for caution in such situations.
Additionally, s 9 of the Succession Act 2006 (the Act) provides that the person must be sighted, as the testator’s signature must be sighted. The witnesses to the execution of a will should be capable of being identified and located if needed to attest that the testator signed the Will.
Section 10 of the Act provides that where an interested witness witnesses the execution of a will, the disposition is void to the extent that it benefits that witness.
However, the disposition in favour of the interested witness is not void if:
- At least two people who were not beneficiaries also witnessed the Will or
- All the people who would benefit if the disposition in favour of the witness was voided consent in writing to the distribution of the disposition and can consent;
- The Court is satisfied that the will-maker knew and approved of the disposition and made it freely and voluntarily.
Background
In Walters v Dawson [2024], NSWSC 570, at [7] – [10] Hammerschlag CJ in Eq, was satisfied:
The deceased and the plaintiff/cross-defendant were in a de facto relationship, the consequence of which would be that on intestacy, the plaintiff/cross-defendant would take the residue in any event.
The deceased told the plaintiff/cross-defendant that he would rewrite his Will and leave most of his estate to him because he was “the only one who had always been there for him.”
At the time of the deceased’s death, the deceased and the plaintiff/cross-defendant lived at the Shoalhaven Caravan Park. Narelle McGrath also resided there and gave evidence that the deceased described the plaintiff/cross-defendant as his spouse and wanted him to have it all.
Lawrence Nash, a retired real estate agent, prepared the Will and took it to the deceased in his caravan. Nash was unaware of the effect of s 10. based on the deceased and the plaintiff/cross-defendant de facto relationship. Consequently, under intestacy laws, the plaintiff/cross-defendant would inherit the residue of the estate.
The plaintiff/cross-defendant testified that the deceased had informed him of his intention to rewrite his Will and leave the majority of his estate to the plaintiff/cross-defendant because he had always been there for him.
The matter
The parties asked the Court to admit to probate the Will of Alan Bertram Hooper (the deceased) dated 3 March 2022, including a declaration under s 10(3) of the Act 2006 that the Court is satisfied that the deceased knew and approved of the beneficial disposition given or made by the Will to the plaintiff/cross-defendant and that it was provided or made freely and voluntarily by him.
Narelle McGrath, a resident at the Shoalhaven Caravan Park where the deceased and the plaintiff/cross-defendant lived, also stated that the deceased referred to the plaintiff/cross-defendant as his spouse and expressed his desire for the plaintiff/cross-defendant to inherit everything.
Furthermore, Lawrence Nash, who prepared and attested the Will, testified that the deceased had expressed his wish to change the Will to designate the plaintiff/cross-defendant as the primary beneficiary without being aware of the legal implications of s10 of the Act.
Accordingly, unless the parties could establish a relevant exception, the disposition to the beneficiary was made void by section 10(2) of the Succession Act 2006 (the ‘Act’). The beneficiary relied on s 10(3)(c), by which the Court is satisfied the evidence discloses a clear and conscious intention of the deceased to make the disposition in favour of the plaintiff/cross-defendant and that he did so freely and voluntarily.
Hammerschlag CJ in Eq was satisfied based on the deceased and the plaintiff/cross-defendant’s de facto relationship that under intestacy laws, the plaintiff/cross-defendant would inherit the residue of the estate.
The plaintiff/cross-defendant testified that the deceased had informed him of his intention to rewrite his Will and leave the majority of his estate to the plaintiff/cross-defendant because he had always been there for him.
The decision
The Court made an order admitting the deceased’s Will dated 3 March 2022 to probate, including a declaration under s 10(3) of the Succession Act 2006 (NSW) that the Court is satisfied that the testator knew and approved of the beneficial disposition given or made by the Will to the plaintiff/cross-defendant and that it was provided or made freely and voluntarily by him.