Signing and witnessing a will
A testator must sign their will in front of 2 adult witnesses [Succession Act 2023 (SA) s 8(b)(ii)]. While a beneficiary or a beneficiary's spouse or domestic partner may witness a will in South Australia [s 13], it is preferable to ask people not named in the will to avoid suggestions of a conflict of interest. While witnesses should have legal capacity, any lack of capacity or subsequent loss of capacity will not of itself invalidate the will [s 12].
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 (or had the will read to them if they are unable to read it themselves).
- Before the will is signed, the testator and the witnesses should initial any alterations to the will [see Succession Act 2023 (SA) s 16 and Uniform Civil Rules 2020 rule 356.8]. See also Alterations before signing below.
- Before it is signed, the will should be dated as signed and witnessed on a particular 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, or other evidence may be needed to establish that it is the latest or only will of the testator [Uniform Civil Rules 2020 (SA) rule 356.12].
- 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 (usually a cross) where they 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 their language by one of the witnesses in the presence of the other witness and the witnesses must state in the attestation clause 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 Uniform Civil Rules 2020 (SA) rule 356.9].
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 [Succession Act 2023 (SA) s 16]. If this is not done, the court will assume that the alteration was made after the will was signed unless there is evidence to show that it was present when the will was signed [see Uniform Civil Rules 2020 rule 356.8] or the court waives 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 Dec 24th 2024
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