Creating a will is one of the most important steps you can take to protect your loved ones and ensure your wishes are respected after you pass away. In New South Wales (NSW), the law has clear requirements for making a legally valid will. Understanding these rules is crucial to avoid costly disputes, delays in administering your estate, or even the risk of your will being declared invalid. This article explains the key requirements under Wills & Estate Planning Law in NSW, common mistakes to avoid, and why professional legal guidance can provide peace of mind.
What is a Will?
A will is a legal document that sets out how your assets should be distributed after your death. It also allows you to appoint an executor — the person responsible for managing your estate — and nominate guardians for minor children. A properly drafted will ensures that your estate is handled according to your wishes rather than the default intestacy rules, which may not reflect your personal circumstances or family dynamics.
Legal Requirements for a Valid Will in NSW
For a will to be legally valid in NSW, it must meet the requirements of the Succession Act 2006 (NSW). These include:
Age Requirement - You must be over 18 years of age. Exceptions may apply if you are married or obtain court approval.
Written Document - A will must be in writing. This can be typed or handwritten, but clarity is essential.
Signature - You must sign the will, or someone can sign on your behalf if you are unable to do so, provided it is done in your presence and with your consent.
Witnesses - Two witnesses must be present when you sign your will. They must also sign it in your presence and in each other’s presence. Witnesses should not be beneficiaries, as this could invalidate gifts made to them.
Capacity and Intention - You must have testamentary capacity, meaning you understand the effect of making a will, the extent of your estate, and who may have a claim to it. You must also intend the document to serve as your will.
Failure to meet these requirements may render your will invalid, leading to disputes and the application of intestacy laws.
Common Mistakes to Avoid
Even with the best intentions, many people make errors when drafting their wills. Common mistakes include:
Failing to update a will after marriage, divorce, or the birth of children.
Appointing executors who are unwilling or unable to take on the role.
Using vague or unclear wording, which can lead to disputes.
Leaving out significant assets such as digital property or overseas holdings.
Attempting to write a will without proper legal advice, increasing the risk of invalidity.
What Happens Without a Will?
If you die without a valid will in NSW, your estate is distributed under the intestacy rules in the Succession Act. These rules set out a strict order of inheritance, starting with your spouse and children, followed by more distant relatives. Unfortunately, intestacy may result in outcomes you would not have chosen, such as excluding close friends or charities from your estate. It may also cause unnecessary stress for your family and lead to disputes.
Why Seek Professional Help?
While it is possible to create a basic will using templates, seeking guidance from an experienced estate planning lawyer ensures your will is tailored to your personal circumstances. A lawyer can:
Help you structure your estate to minimise disputes.
Advise on tax implications and asset protection strategies.
Draft additional documents such as powers of attorney and enduring guardianships.
Ensure your will complies with NSW laws and reflects your true intentions.
Engaging professional advice is especially important if you have complex family circumstances, significant assets, or wish to exclude someone who may otherwise have a legal claim to your estate.
Updating and Safeguarding Your Will
Creating a will is not a one-off task. Life events such as marriage, divorce, children, or acquiring new assets should trigger a review of your will. Experts recommend reviewing your will every three to five years to ensure it remains relevant.
You should also keep your will in a safe and accessible location. Many people choose to store their will with their solicitor, the NSW Trustee & Guardian, or in a secure fireproof safe. Always let your executor know where the original document is stored.
A legally valid will is the foundation of effective estate planning. By ensuring your will complies with NSW law, you protect your loved ones, reduce the risk of disputes, and gain peace of mind knowing that your wishes will be honoured. Given the complexities of Wills & Estate Planning Law, consulting a qualified lawyer is the best way to ensure your will is properly drafted and stands up to legal scrutiny.
At New South Lawyers, we specialise in Wills & Estate Planning Law across NSW. Whether you need help drafting your first will, updating an existing one, or planning your estate, our team provides clear, practical advice tailored to your circumstances. Don’t leave your legacy to chance —
