Have you been asked to witness a will?

During the current COVID-19 pandemic there has been a marked increase in patients asking employees to witness their new or amended wills. 

Our clear instruction to all employees is that they should not witness a patient’s will.  

As Director Legal Services and Chief Legal Officer Peter Ryan explains:  

Witnessing a person’s will involves a great deal more than simply witnessing a signature. A witness to a will needs to be ready and able to attest to a person’s testamentary capacity, which is a legal test, and is quite different from the test for medical decision-making capacity. For example, a witness must be able to attest that the will maker understood the general nature and value of their assets, was aware of people who might have a claim on their estate, and that they had the capacity to evaluate and discriminate between such claims.  

The legal test of capacity can be quite challenging to meet if a person is approaching the end of their life, and in some cases patients will lack testamentary capacity. 

Any witness to a will in some circumstances faces the real prospect of becoming themselves personally involved in difficult disputes regarding the validity of the will, whether due to incapacity, duress or other considerations.  In addition, declining to witness a will on the grounds that an employee is concerned about the patient’s capacity, or perhaps duress being exercised against the patient, can be damaging to the clinical relationship.  

For these reasons the appropriate response to such a request is to decline it on the grounds that it is against Monash Health’s policy for employees to witness a patient’s will.  

What should employees do if they are asked to witness a will and where should patients seek advice?  

Contact the Monash Health legal team by email at CorporateLegal@monashhealth.org

Approved by Peter Ryan – Director Legal Services and Chief Legal Officer

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