Creating a Valid Will in NSW – What You Need to Know

A will is a legal document that outlines how a person’s assets and property should be distributed after their death. This allows you to leave your assets and any other possessions to which you are entitled at the time of your death to nominated beneficiaries. If a person dies without a will, their property is disposed of based on a statutory formula.

If you have a valid will, upon your death, the executor you have specified in your will applies to the courts for probate, meaning they will receive title to your property and dispose of it in accordance with your wishes under your will.

The legal requirements for making a will in NSW are strict and it is always recommended that you have a lawyer assist you with writing your will.

To ensure that your will is valid and enforceable, it’s important to follow the legal requirements for creating a valid will in NSW.

Legal requirements for making a will in NSW

If you do not have a valid will, you will die as an ‘intestate‘. This means your property will be distributed amongst your relatives (or to the State itself) based on a formula in the Succession Act 2006 (NSW).

There is a criterion of legal requirements you must satisfy when making a will in New South Wales in order for it to be deemed valid. If you do not satisfy all of these requirements, the Supreme Court of NSW may still conclude that a document is your will if, having regard to any evidence relating to the execution of that document or your testamentary intentions, it is satisfied that you intended for that document to be your will. The requirements are:

1. you must be at least 18 years of age. Minors can make a will if they are married or the Supreme Court of NSW authorises them to make a will, which it will only do if it is satisfied that:
   a. they understand what a will is;
   b. the proposed will reflects their intentions; and
   c. it is reasonable to allow the will to be made;
2. the will must be in writing and signed by you;
3. two witnesses must have watched you sign the will, and have also attested and signed the will themselves; and
4. you must have ‘testamentary capacity’ to prepare a will, meaning you understand the effect of a will, you know what assets you own, you do not have a mental health issue affecting your ability to make rational decisions and you know who would likely expect to be named in your will as a beneficiary. If you do not have ‘testamentary capacity’, then the Supreme Court of NSW may order a will to be made on your behalf.

Key Take Away

Creating a valid will in New South Wales requires following specific legal requirements, such as having a written document, signed by the testator and witnessed by at least two people. Seeking the advice of a qualified lawyer can help ensure that your will is valid and enforceable and reflects your wishes.

If you are looking at creating your will, get in touch with us today by telephoning our office on (02) 8107 4898 or booking a consultation.