Can a Notary Witness a Will in Australia?

Yes, a notary can be one of the witnesses to a will, but an Australian will does not need to be notarised to be valid. It generally needs to be signed by the will-maker in front of two adult witnesses, present at the same time, who also sign. For the will itself, see a solicitor.

Key takeaways

• An Australian will is generally valid when signed by the will-maker before two adult witnesses present together, who then sign.
• It does not need to be notarised for use in Australia, and notarising it adds nothing to its validity here.
• A notary can act as one of the two witnesses, like any other suitable adult.
• A beneficiary or a beneficiary's spouse should not witness, because it can cause problems for their gift.
• A notary is useful for overseas aspects: foreign wills signed here, affidavits for foreign probate, and certified copies of wills and grants.

What makes an Australian will valid?

Each Australian state and territory has its own succession law, but the basic formalities for a will are broadly similar. The will must be in writing, signed by the will-maker, and the signature must be made or acknowledged in the presence of two adult witnesses who are present at the same time. The witnesses then sign in the presence of the will-maker. The will-maker must have testamentary capacity and must intend the document to be their will.

There is no requirement for a notary, a JP or a lawyer to be one of the witnesses, and no requirement to register a will. Courts can sometimes admit documents that do not meet the formalities, but relying on that is risky and costly for your family. The safest course is to have a solicitor prepare the will and supervise the signing. Our guide to notaries and lawyers explains the different roles.

Can a notary be a witness?

Yes. A notary is an adult and can be one of the two witnesses, in the same way as any other suitable adult, such as a solicitor, a colleague or a neighbour. Acting as a witness to a will is not a notarial act, so the notary does not attach a notarial certificate or seal, and the will is no more valid for having a notary as a witness. A notary who is also a solicitor may, of course, prepare the will and supervise the signing as a solicitor.

What matters is that the witnesses are independent adults who can later confirm, if needed, that the will was properly signed. That is why solicitors usually arrange for two independent witnesses, often staff members, who have no interest in the will.

Who should not witness a will?

A person who benefits under the will, or the spouse or partner of a beneficiary, should not be a witness. In several Australian jurisdictions, a gift to a witness or their spouse may be affected unless certain conditions are met, and even where it is not, it can invite challenges. Witnesses should be adults, able to see the will-maker sign, and ideally independent of the family and the estate. The detailed rules differ between states, so a solicitor should arrange the witnesses.

Question	Usual position in Australia
Does a will need to be notarised?	No, for validity in Australia
How many witnesses?	Two adults, present at the same time
Can a notary be a witness?	Yes, like any suitable adult
Can a beneficiary be a witness?	Should not; it can affect their gift
Does a will need registering?	No; store it safely and tell your executor
Can it be witnessed remotely?	Some states allow it in certain conditions; check

When is a notary actually useful for wills?

A notary becomes useful where a will has to work across borders. If you own assets in another country, you may make a separate will under that country's law, and it may need to be signed before a notary, or in a form a foreign court recognises, and then apostilled by DFAT. A notary can also act as the authorised person for an international will, which follows a special uniform form. Our guide to international wills explains that option.

After death, notaries often help executors with overseas assets: certifying copies of the will, the grant of probate and the death certificate for foreign banks and courts, and witnessing affidavits, such as an affidavit by a witness confirming how the will was signed, which some foreign courts ask for. Our guide to overseas inheritances covers those documents.

Can a will be witnessed remotely?

Several Australian states and territories have allowed wills to be witnessed by audio-visual link in certain circumstances, and the rules have changed since 2020. Where it is allowed, strict conditions usually apply, such as how the witnesses see the will-maker sign and how the signed pages are brought together. Because a defective will can cause serious problems for your family, only use remote witnessing if you are sure it is available in your jurisdiction and you follow the conditions exactly, ideally with a solicitor's help.

What about codicils and changes to a will?

A codicil, a document that adds to or changes an existing will, generally has to be signed with the same formalities as a will: signed by the will-maker in front of two adult witnesses present together. Handwritten changes to a signed will can cause real problems, because it may be unclear whether they were made before or after signing, and they may not be valid unless properly witnessed. If you want to change your will, ask a solicitor whether a codicil or a new will is better; often a new will is simpler and clearer.

What if the witnesses cannot be found later?

Usually it does not matter, because a properly signed and witnessed will is presumed to have been validly made. But if a will is challenged, or a court in Australia or overseas wants evidence of how it was signed, the witnesses may be asked to give an affidavit. Some foreign courts ask for an affidavit from an attesting witness before accepting an Australian will. That is where a notary may be needed: to witness the affidavit of the attesting witness, so the foreign court can rely on it. Choosing witnesses who are likely to be traceable, such as staff at a solicitor's office, helps.

Why do solicitors arrange the signing?

Many will disputes turn on how the will was signed: whether the will-maker understood it, whether both witnesses were present, whether a beneficiary was in the room. A solicitor who prepares the will usually supervises the signing, checks the formalities, uses independent witnesses, and keeps a file note, all of which make the will much harder to challenge. That protection is worth far more than having a notary as a witness.

Does a will need an apostille?

Not for use in Australia. An apostille is only relevant where an Australian document will be used overseas, for example a certified copy of a will or a grant of probate used to deal with a foreign bank account or property. In that case, the foreign court or body may want the document notarised and apostilled, or a court-certified copy of the grant apostilled by DFAT. Check the country's position on the HCCH status table, and see our guides to apostilling a codicil and codicils.

What should you do before signing a will?

1. See a solicitor to prepare the will, especially if you have assets or family overseas.
2. Arrange two independent adult witnesses, neither a beneficiary nor a beneficiary's partner.
3. Sign in front of both witnesses together, and have them sign in your presence.
4. Consider overseas assets: a separate foreign will or an international will may be advised.
5. Store the original safely and tell your executor where it is.

What does this look like in practice?

Here is an illustration, not a real case. Maria, in Melbourne, has a house in Victoria and an apartment in Spain. She asks whether she needs a notary to witness her will.

Her solicitor explains that her Australian will only needs two independent adult witnesses, and arranges two staff members to witness it at the office. For the apartment in Spain, the solicitor works with a Spanish lawyer, who recommends a separate Spanish will. Maria signs that one before a notary in Melbourne, in the form the Spanish lawyer specifies, and DFAT adds an apostille. Both wills state that they do not revoke each other.

In short

A notary can be one of the two witnesses to an Australian will, but a will does not need notarising to be valid here: it needs to be signed by the will-maker before two adult witnesses present together, who then sign, and witnesses should not be beneficiaries. A notary is most useful for the overseas side of an estate. See a solicitor before making or signing a will. Our document notarisation services page explains how this works with us.

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Dealing with a will or estate document for use overseas? Send us your solicitor's instructions, and we will explain each notarial step before you book.