How to Make a Valid Will in NSW: Legal Requirements

Knowing how to make a valid will in NSW gives you the best chance that your wishes will be followed and that your family is spared uncertainty at a difficult time. A will is simple in concept, but the law is strict about how it must be signed and witnessed. A small mistake can lead to delay, cost and even dispute.

This article explains the key requirements under the Succession Act 2006 (NSW) in plain English. It is general information only.

What makes a will valid in NSW?

A will is a legal document that sets out who you want to receive your property after you die, who will manage your estate (your executor), and, if you have young children, sometimes who you would like to care for them. For a will to be valid, two broad things must be true. First, you must be legally able to make a will. Second, the document must be properly signed and witnessed, or the Supreme Court must be willing to accept it despite any shortcomings.

Who can make a will?

In general, you must be at least 18 years old and have what the law calls testamentary capacity. This means that when you make your will, you understand:

• that you are making a will and what it does;
• the nature and extent of your property;
• who might reasonably expect to benefit from your estate; and
• that your decisions are your own, free from pressure from anyone else.

If you have a health condition that affects memory or understanding, it is wise to speak with a solicitor early. Capacity is judged at the time you give instructions and sign, so having clear records at that time can be very valuable later.

The formal requirements for signing and witnessing

Under the Succession Act, a will must generally meet these formalities:

1. It must be in writing. It can be typed or handwritten.
2. It must be signed. You sign the will intending it to be your will. Another person may sign for you, but only in your presence and at your direction.
3. Your signature must be witnessed. You must make or acknowledge your signature in the presence of at least two witnesses who are present at the same time.
4. The witnesses must sign. At least two witnesses must then sign the will in your presence, recording that they witnessed your signature.

In practice, a solicitor will usually supervise signing to make sure each step happens in the right order, and will keep a record of what took place.

Choosing your witnesses carefully

Choose witnesses who are over 18 and who are not receiving anything under your will. If a person who benefits under the will (or their spouse) acts as a witness, they may lose their gift. Independent people, such as staff at your solicitor's office, are the safest choice.

What is an informal will?

Sometimes a person dies leaving a document, such as an unsigned draft, a note or even an electronic file, that was meant to be their will but was not signed and witnessed properly. In NSW, the Supreme Court has the power to declare such a document to be a valid will if it is satisfied that the document records the person's testamentary intentions and that they intended it to operate as their will.

This can rescue a will in some cases, but it is not something to rely on. The process involves a court application, evidence, extra cost and delay, and the outcome is not guaranteed. Getting the formalities right in the first place is far safer.

Common mistakes to avoid

• Signing without two witnesses present at the same time.
• Using a beneficiary or their spouse as a witness.
• Making handwritten changes after signing, which may not be valid unless they are also properly signed and witnessed.
• Using an unclear or home-made document that does not deal with the whole estate, leaving gaps that must be sorted out later.
• Forgetting to update the will after major life changes, such as marriage, divorce, children or the death of a beneficiary.
• Not telling your executor where the original will is kept. The original is usually needed to apply for probate.

Why professional advice matters

A solicitor can do more than check the signing process. They can help you choose an appropriate executor, think about how your assets are held (for example, jointly owned property usually passes outside your will), consider whether anyone you leave out might make a claim against your estate, and put your instructions in clear language.

Frequently Asked Questions

Can I write my own will in NSW?

Yes, you can, but a home-made will carries risks. If it is not signed and witnessed correctly, or if its wording is unclear, your estate may be delayed or distributed in a way you did not intend. Professional advice is strongly recommended, particularly if your affairs are not straightforward.

Does a will have to be witnessed by a lawyer?

No. The law requires two or more witnesses present at the same time, but they do not have to be lawyers. They should be adults who are not beneficiaries. Many people choose to have their solicitor arrange this.

How often should I update my will?

It is sensible to review your will every few years and whenever something significant changes in your life, such as a relationship change, a new child or grandchild, a change in your assets or the death of someone named in the will.

What happens if I die without a valid will?

If there is no valid will, you are said to have died intestate and your estate is distributed under rules set by NSW law rather than your wishes. Those rules prioritise certain family members, and the process can be slower and less certain than administering a valid will.

This article is general information only and is not legal advice. Laws and processes change, and every situation is different. Speak to a lawyer about your circumstances before you act.