Thursday, November 5, 2020

‘Retro’** witnessing of wills and BDBNs: AKA no one knows you weren’t there, until it is a problem


Witnessing rule

A fundamental aspect to create a valid will, and indeed most binding death benefit nominations, is that there must be two witnesses and they must be present and observe the willmaker sign (and date) the document.

The rule in this regard is inflexible, particularly where a lawyer is involved.


The decision in the case of Lewis v Lewis [2020] NSWSC 1306 is another stark reminder of the legal system’s view of ideas such as backdating, witnessing without witnessing, retro-dating, retro-witnessing and similar ‘near enough is good enough’ strategies.

In particular, one of the key aspects of the case for advisers involved an analysis of the requirements of signing a will validly

Factual matrix

Relevantly in relation to the witnessing aspect, the factual matrix in Lewis involved a son who was a qualified lawyer and prepared a will on behalf of his mother.

Likely realising that if he was one of the witnesses he would be automatically excluded from taking any benefit under the document (see Hill trading as R F Hill & Associates v Van Erp (1997) 188 CLR 159), he arranged for 2 neighbours to be the witnesses.

After handing the will to his mother and explaining the witnesses would be over later in the day the son went out.  When he returned his mother had gone to bed, leaving the will, signed, on a table in the lounge room.

When the witnesses arrived the son told them that his mother had already signed the will and gone to bed and said 'This is not the right way to witness the will but I will have to deal with it at a later stage. Do you mind signing anyway?'. 

Court’s view

The approach the son suggested at least somewhat reminiscent of the conduct nab found itself in trouble over for regularly allowing advisers to witness binding death benefit nominations with only one witness in attendance - and a second witness later signing; despite not actually having been present.

During the hearing when the lawyer was questioned as to why he had knowingly procured false attestations, he evidently did not seem especially troubled - and indeed responded by saying he offered the witnesses a choice and that they could always have refused if they were worried.

The court confirmed its view that the lawyer's conduct was completely unsatisfactory and it was grossly improper of him to ask the witnesses to make solemn statements that they had witnessed the willmaker signing the will when in fact they had not.

Furthermore, the attempt to deflect blame on to the witnesses was described as 'positively discreditable'. 

Ultimately, the court concluded that the conduct of the lawyer may have justified referral to the Law Society for consideration of disciplinary action, although gave the lawyer the right to make submissions against this occurring.

Based on the decision in Council of the Law Society of New South Wales v Renfrew [2019] NSWCATOD 63, there is every chance of disciplinary consequences.  In that case a lawyer was the only witness to a will at the time the willmaker signed, and then arranged for a second witness to sign some period of time later (after the willmaker had died), before then attempting to mislead the court on a probate application that both witnesses had in fact been present.  Although there were other issues of concern, this aspect was held to amount to professional misconduct.

As usual, please contact me if you would like access to any of the content mentioned in this post.

** for the trainspotters, the title today is riffed from the Silverchair song ‘Insomnia’. 

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PS: the original version of this article appears SMSF Adviser Magazine, see here: