How to make a valid will in NSW

A will is one of the most important documents you will ever sign, and one of the easiest to get wrong. A small mistake in how it is made or signed can make it invalid, or open it to challenge. This guide explains what makes a will valid in NSW and how to avoid the common traps.

Why a valid will matters

A valid will lets you decide who receives your estate, who looks after your affairs, and who cares for your children. Without a valid will, you die intestate and the law decides, which rarely matches what people want. There is a separate article in this series on dying without a will.

The theme we see most often is a will that was cheap and quick to make, then expensive and painful to deal with after death. A homemade or kit will that does not meet the requirements, or that is unclear, can cost the estate far more than a properly drafted will ever would.

The formal requirements

Under section 6 of the Succession Act 2006, a will is valid only if it meets these requirements.

• It is in writing.
• It is signed by you, the will-maker, or by another person in your presence and at your direction, with the intention of executing the will.
• Your signature is made or acknowledged in front of two or more witnesses who are present at the same time.
• At least two of those witnesses sign the will in your presence.

These steps sound simple, but they are precisely where homemade wills fail. A will signed without two witnesses present together, or witnessed by the wrong people, can be invalid. Getting the execution right is not a formality, it is what makes the document a will.

Who should witness your will

Choose witnesses who are independent. A person who witnesses your will, or their spouse, should not be a beneficiary, because a gift to a witness can be void in some circumstances. Use two independent adults who are not receiving anything under the will. This is a simple precaution that avoids a serious problem.

Who can make a will

You generally need to be at least 18 to make a will, though there are limited exceptions, such as for people who are married or with the authorisation of the court. You also need testamentary capacity, meaning you understand what a will is, what you own, and who has a claim on your estate.

Capacity is worth taking seriously, especially for older will-makers or where someone might later challenge the will. Part of our job is to assess and record capacity properly, so the will stands up if it is questioned.

What to include

A good will covers more than who gets what. It should appoint an executor to administer your estate, deal with the whole of your estate including a gift of anything not specifically mentioned, appoint guardians for any young children, and deal with specific gifts and any wishes about funeral arrangements. For many people it is also worth considering a testamentary trust, which can protect and manage what you leave for beneficiaries.

Common mistakes

The mistakes we see most often are easy to avoid with advice. A will that is not signed or witnessed correctly. A beneficiary used as a witness. A will that does not deal with the whole estate, leaving a partial intestacy. Assets that do not pass under the will at all, such as superannuation or jointly owned property, being treated as if they do. And a will left unchanged after a marriage, divorce, or death that affects it, since those events can revoke or alter a will.

That last point surprises people. Marriage generally revokes an existing will unless the will was made in contemplation of that marriage. If your circumstances change, your will should be reviewed.

How we help

We prepare wills that are valid, clear, and built for your situation, and we make sure they are signed and witnessed correctly. We also look at the things a will alone does not cover, such as superannuation and jointly owned assets, so your estate plan actually works as a whole. A properly made will is a modest cost that saves your family a great deal.

Frequently asked questions

Does a will have to be witnessed? Yes. Your signature must be made or acknowledged in front of two or more witnesses present at the same time, and at least two of them must sign.

Can a beneficiary witness my will? It is best avoided. A gift to a witness, or their spouse, can be void in some circumstances. Use independent witnesses.

Is a homemade or kit will valid? It can be, if it meets the requirements, but these wills often fail on execution or clarity and cost the estate far more to deal with.

Does getting married change my will? Generally marriage revokes an existing will unless it was made in contemplation of the marriage. Review your will when your circumstances change.

Keep reading

• Wills and estates
• What happens if you die without a will in NSW?
• Powers of attorney and enduring guardianship explained

This article contains general information only and is not legal advice. For advice about your situation, please contact us. Liability limited by a scheme approved under Professional Standards Legislation.