When completing a legal document or statement, it is important that you carefully elect a suitable individual as a witness to your signature. Deciding on who can be a witness to the signature of a legal document, can be quite complex and not as straightforward as it may seem. The legislative requirements for witnesses of legal documents will vary depending on your jurisdiction and the nature of the document involved.
Affidavit
Within New South Wales, an affidavit can be witnessed by a Justice of the Peace, an Australian legal practitioner, a Notary Public, a commissioner of the court for taking affidavits, and any other person authorised by law to administer an oath. Outside New South Wales, affidavits must be sworn before a notary public, a person having authority to administer an oath in that country or place, or a British or Australian Consular Officer.
Statutory Declaration
In New South Wales, statutory declarations are made pursuant to the provisions of the Oaths Act 1900. The act prescribes that functionaries or witnesses to a statutory declaration in New South Wales must be a:
• Justice of the peace (JP)
• Notary public
• Commissioner of the court for taking affidavits
• Solicitor (with a current practising certificate)
• Other person by law authorised to administer an oath.
Will
In New South Wales, the legal requirements of executing a Will are found in section 6 of the Succession Act 2006. It has been commonly recommended that a beneficiary should not be a witness as they may lose their entitlement under the Will. However, Section 10 now allows the spouse of a beneficiary to be a witness. This exception will only apply in the following circumstances:
• there are at least two other attesting witnesses who are not beneficiaries
• written consent is obtained from all who would benefit directly if the gifts to the witness were not allowed, or
• the court is satisfied that the will-maker knew and approved of the gift and made it freely and voluntarily.
Even though the act gives this exception under section 10, to avoid any adverse effects in the future, it is still recommended that a beneficiary does not witness the Will.
Bank Loan Document
This will primarily depend on the bank and the nature of the loan. In some circumstances, some banks require solicitors to be an independent witness because independent advice needs to be given. In other circumstances, a witness need not be a solicitor.
Best Practice
As you can see, it is essential that you have a clear understanding of the requirements created under the statutory provisions before electing an individual to be a witness to any legal document. It is generally not a good idea to elect a relative to be the witness of a legal document, as having any financial interest or relation to one of the other parties may tarnish the witness’s credibility. As a matter of good practice, it would be more reasonable to elect an independent neutral third party, who has no interest in the document. For example, where the witness to a will need not be a solicitor or justice of peace, we recommend that the witness should be someone who is unrelated to any party to the document. It is also important to remember that the individual should be an Australian Citizen 18 years of age or over and has known the Applicant for at least 12 months.
Should you require any help with witnessing legal documents, contact the experienced team of lawyers here at The Quinn Group. For more information submit an online enquiry, or for any other legal advice call us on 1300 QUINNS (784 667) or on +61 2 9223 9166 to book an appointment.
