In New South Wales, your will must be signed in front of 2 witnesses who are both present at the same time. Get this wrong and the document may not operate as a will at all. Here is exactly who can witness, who cannot, and how the signing should be done.
In New South Wales this mistake has real teeth. Under section 10 of the Succession Act 2006 (NSW), if someone who inherits under the will also signs as a witness, their gift is void — not the whole will, just their share.
That is the cruellest possible result. The will still works. Probate is still granted. Every other gift is paid out. The one person you were trying to look after gets nothing, and their share falls into the rest of your estate to be divided among everyone else.
The gift can be rescued, but only if at least two of the witnesses who signed are not beneficiaries, or everyone who would gain from the gift failing consents in writing, or the Court is satisfied the will-maker knew about and freely approved the gift. Every one of those routes means a court application or the goodwill of the people who benefit from the gift failing. Neither is something to plan around.
Worth knowing: this is not the law everywhere in Australia. In Victoria, South Australia, Western Australia and the ACT the same signature would not cost the beneficiary their inheritance. Advice written for those states does not protect you in NSW.
Under the Succession Act 2006 (NSW), a will is validly executed when all of the following happen:
The phrase doing the heavy lifting is present at the same time. Signing at the kitchen table on Monday and having a neighbour add their signature on Wednesday does not satisfy the section, even though the finished page looks identical. The witnesses must see you sign, or hear you confirm the signature is yours, together.
Almost any competent adult can witness a will. A witness is only confirming that they watched you sign — they are not agreeing with, or even reading, what the will says. Good choices are neighbours, colleagues, or friends who are not mentioned in the document.
A witness must be able to see you sign, so a person who cannot physically see the signature being made cannot act as a witness.
The safe rule: your witnesses should get nothing under the will, and neither should their partners.
All is not necessarily lost. The Supreme Court of New South Wales has a dispensing power under section 8 of the Succession Act 2006 (NSW), which lets it admit a document that fails the formal requirements if it is satisfied the deceased intended it to operate as their will.
That is a safety net, not a plan. Relying on it means a court application, legal costs, delay measured in months, and a real chance the court is not satisfied. Correct witnessing costs nothing and takes ten minutes.
And if the court is not satisfied, the will is set aside entirely and Chapter 4 of the Succession Act 2006 (NSW) decides who inherits. In New South Wales that means your surviving partner takes the first $611,387.84 (statutory legacy) and the balance is shared with your children — a formula that adjusted quarterly against the Consumer Price Index. A ten-minute signing error can therefore redirect the entire estate.
No. They are witnessing your signature, not the contents. You are entitled to keep what your will says private.
Yes, provided they receive nothing under the will and are not the partner of someone who does. In practice family members are often beneficiaries, so unrelated witnesses are the safer choice.
No. Under section 10 of the Succession Act 2006 (NSW), a gift to someone who witnessed the will is void to the extent it benefits them. The rest of the will still stands. Use witnesses who inherit nothing.
Temporary remote-witnessing arrangements were introduced in several Australian jurisdictions during the COVID-19 period, and the position has since changed and continues to differ between states. If you cannot get two witnesses physically present, get advice about New South Wales's current position before relying on a video signing.
No. There is no register you must lodge your will with, and it does not need a notary or a justice of the peace. A correctly signed and witnessed will is valid on its own — including one you prepared yourself online. See whether a will made online is legally valid in Australia.
No. The law requires two witnesses, not a lawyer.
Avoid it. Your spouse or partner is usually a beneficiary, which is exactly the situation the witnessing rules are designed to prevent. Couples making wills at the same time should use two independent adults for both documents — see how wills work for couples.