What are the witnessing requirements for a valid Will in Queensland?

The execution of a Will is a formal legal process governed by strict statutory rules. If these rules are not followed precisely, the Will may be declared invalid, or the executor may face significant obstacles, delays, and expenses when applying for probate.

The Statutory Witnessing Rules in Queensland

Under Section 10 of the Succession Act 1981 (Qld),¹ a Will is not valid unless it meets the following execution requirements:

1. In Writing: The Will must be in writing (whether printed or handwritten).
2. Signed by the Testator: The testator (the person making the Will) must sign the Will, or have another person sign it in their presence and at their direction.
3. Simultaneous Presence: The testator must sign the Will (or acknowledge their signature) in the presence of two or more witnesses who are present at the same time.
4. Attestation by Witnesses: Each witness must sign and attest the Will in the presence of the testator (though they do not need to sign in the presence of each other).

Who Can Witness a Will?

Not everyone is eligible to act as a witness. Under Queensland law:

• Age: Witnesses must be adults (18 years or older).
• Capacity: Witnesses must have the mental capacity to understand that they are witnessing the signing of a legal document.
• No Beneficiary Witnessing: Under Section 11 of the Succession Act 1981 (Qld),² a witness must not be a beneficiary under the Will, nor the spouse of a beneficiary. If a beneficiary does witness the Will, the Will itself remains valid, but the gift to that witness is void, meaning they cannot inherit under that Will.

The “Different Pen” Problem: Does It Make a Will Invalid?

There is no law in Queensland prescribing that witnesses must use the same pen or a specific ink colour. However, using different-coloured pens (for example, one witness signing in black ink and the other in blue) is a common trigger for probate difficulties.

When an executor applies to the Supreme Court of Queensland for a Grant of Probate, the Registrar of Probate examines the original Will for any irregularities. If different pens are used, the Registrar may suspect that the testator and witnesses were not all in the room at the same time when the Will was executed.

To resolve this suspicion, the Registrar will typically require the executor to file an Affidavit of Due Execution.³ This is a formal sworn statement by one of the witnesses or someone who was present, confirming that despite the different pens, the statutory requirements of simultaneous presence were met.

If the witnesses have moved, cannot be contacted, or have passed away, obtaining this affidavit can be extremely difficult and expensive, leading to months of delays in administering the estate.

Execution Irregularity Checkpoints

Apart from pen colours, other minor physical issues can cause the Registrar to question whether a Will has been tampered with or executed improperly:

• Different Pen Colours: Raises a question of whether all witnesses signed in the same room.
• Staple Marks or Paperclip Indents: Suggests pages or attachments may have been removed or substituted.
• Handwritten Corrections or Margin Notes: Raises doubts about whether the alterations were made before or after the Will was signed.
• Lack of Page Initials: Increases the risk of a claim that pages have been substituted after execution.

What to Do If a Will Has Been Executed with Different Pens

If you discover that an existing Will was signed with different pens and the testator has since lost capacity (for example, due to a dementia diagnosis), they cannot sign a fresh Will.

In this situation, the best course of action is to contact the witnesses immediately while their memories are fresh. Request that they sign a statutory declaration or letter confirming the exact circumstances of the execution—specifically that the testator, the GP, the nurse, or other witnesses were all physically present in the same room at the same time. Keep this document with the original Will to provide to the probate registry later.

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• Can I use a DIY Will Kit in Queensland?
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Professional Guidance

The safest way to ensure your Will is legally binding and will pass probate without issue is to have it drafted and its execution supervised by a qualified solicitor. At Bell & Senior Lawyers, we ensure all execution formalities are strictly met.

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