WHAT HAPPENS WHEN A BENEFICIARY WITNESSES A WILL?

Date: Mar 08, 2013
Document Type: Article

Section 10 of the Succession Act 2006 appears under the heading “Can An Interested Witness Benefit From A Disposition Under A Will?”

Section 10 applies to wills made before or after 1 March 2008 (the commencement date of the Succession Act), if the will-maker died on or after the 1 March 2008.

Section 10 deals with what the law refers to as the interested witness rule, the interest being receipt of a beneficial disposition under the will.

The general rule is that the beneficial disposition is void to the extent that it concerns the interested witness or a person claiming under the interested witness.

There is a presumption that a person who signs the will does so as an attesting witness.

There are 3 circumstances under which a beneficial disposition to an attesting witness will be valid.

A beneficial disposition is not void if:

(a) at least two of the people who attested the execution of the will are not interested witnesses, or

(b) all persons who would benefit directly from the avoidance of the disposition consent in writing to the distribution of the disposition under the will and have the capacity to give that consent; or

(c) the Court is satisfied that the testator knew and approved of the disposition and it was given or made freely and voluntarily by the testator.

The rule about disposition is to witnesses does not apply to a charge or direction in the will for the payment of a debt or reasonable remuneration to persons acting in relation to the administration of the estate (Section 10(4)).

Therefore Section 10 provides some exceptions to the rule in the surprisingly common occurrence that a one of the two witnesses to the will is also named as a beneficiary of a gift under the will.

Despite these exceptions – they are limited – for obvious reasons a person named as a beneficiary in the will should never witness it. 

CMN have acted in matters involving a beneficiary witnessing the will in which the attesting witness were nominated to receive a benefit.

Unless one of the other exceptions listed above applies, if the attesting witness wants to benefit from the will, he or she has to apply to the Supreme Court for an order seeking a declaration that the gift to the attesting witness is not void.

The Application needs to be supported by an affidavit from the attesting witness setting out the circumstances in which the applicant witnessed the willmakers signature.

If there are other beneficiaries named in the will the applicant is required to bring the issue to their attention and notify the Court of their consent or non-consent to the Application.

The Application is easier if all other beneficiaries consent. If not all interested beneficiaries consent, the Applicant is required to satisfy the Court that the will-maker knew and approved of the gift to the Applicant and that the gift was made freely and voluntarily.

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