Signing and witnessing a will
While a beneficiary or a beneficiary's spouse may witness a will in South Australia [Wills Act 1936 (SA) s 17], it is preferable to avoid this situation, particularly if the will may be contested.
A will is validly signed and witnessed if the following steps are taken:
- The testator must have read, understood and approved of everything in the will
- Before the will is signed, the testator and the witnesses should initial any alterations to the will [see Wills Act 1936 (SA) s 24 and Supreme Court Probate Rules 2015 (SA) r 22]. See also 'Alterations before signing' below.
- Before it is signed, the will should be dated as signed and witnessed on X date, either at the beginning or end. If the will is not dated or there is some doubt about the date on which the will was executed, an affidavit of one of the attesting witnesses in proof of the actual date must be filed and failing that, other evidence that shows that it is the latest or only will of the testator [Supreme Court Probate Rules 2015 (SA) r 21].
- In the presence of both witnesses, the testator should sign in pen at the end of the will and preferably, but not necessarily, at the foot of each (numbered) page.
- In the presence of the testator, the witnesses should sign at the end of the will under the signature of the testator, using the same pen as the testator.
- The will of a testator who cannot read should be read to the testator by one of the witnesses in the presence of the other witness and the witnesses must state that they heard the will read and were satisfied that the testator understood and approved of it, see Attestation clause.
- A testator who cannot write because of illiteracy or physical disability can place a mark (normally a cross) where she or he would normally sign and the witnesses must state that the mark was made by the testator, see Attestation clause.
- The will of a testator who does not understand the English language should be read to the testator in her or his language by one of the witnesses in the presence of the other witness and the witnesses must state in the that the testator understood and approved of it, see Attestation clause.
- Wills should not be executed in duplicate. There should only be one original, signed copy of the will. Photocopies may be made. It is a good idea to note on the photocopies where the original is kept.
- No writing or alteration should be made on a will after it is signed.
- No pins or paper clips should be attached to a will. If it appears to the Registrar from any mark or hole in the will that another document may have been annexed or attached, it must be accounted for and/or produced to the Registrar's satisfaction [see Supreme Court Probate Rules 2015 (SA) r 23].
Alterations before signing
Wills can be altered before signing, but the testator, and both witnesses, must sign or initial in the margin or near the alteration. If this is not done, the court will assume that the alteration was made after the will was signed and the alteration will not be effective unless the court waives the formalities, see Waiving formalities. Once a will has been signed there can be no alteration, either by crossing out or writing in new clauses, unless the new clauses are executed in the same manner as a will, see Updating a will.
Signing and witnessing a will : Last Revised: Tue Jan 7th 2020
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