The starting point is that any gift made to a person who witnessed the signing of the will is void. The same applies to a gift made to the witnesses’ spouse or de facto partner.
There are three exceptions, where a gift made to a person who witnessed the signing of a will is valid:
- Where there were more than two people present when the will was signed, such that there were at least two people who witnessed the will being signed who did not inherit anything under the will. This applies regardless of whether these extra witnesses actually signed the will.
- Where the “gift” is actually the repayment of a debt.
- Where all persons to whom the property would otherwise go have legal capacity and consent in writing to the witness receiving the gift.
If a gift is made to a person who witnessed the will and none of the above three exceptions apply, then for that person to receive the gift they will need to make an application to the High Court. To succeed in obtaining the gift, they will need to prove to the Court that the will-maker knew and approved of the gift and made the gift voluntarily.