Making A Will (NSW)

A will is a legal document that specifies a person’s directions for their estate when they die. In New South Wales, wills are governed by the Succession Act 2006.

In a will, a person can leave instructions for any property to which they are entitled at the time of their death. It can also contain instructions about, for example, the care of children or pets, funeral arrangements, and donations to charity.

Execution

To be legal in New South Wales, a will must be:

• in writing;
• signed by the person making it (the “testator”);
• signed by the testator in the presence of 2 witnesses aged over 18, present at the same time.
• signed and attested to by the witnesses in the presence of the testator.

It should also be dated. If there is no date listed, the witnesses may have to swear an affidavit as to the date it was signed. The date is important to prove the will is the testator’s last one.

The witnesses must be aged at least 18 and not be a family member of the testator. They also cannot be a beneficiary or know someone who may benefit from the will.

A will made by a person aged under 18 (a “minor”) is not valid unless there are specific circumstances, such as when it is made in contemplation of marriage, or the minor is married.

The will takes effect as if it had been executed immediately before the testator’s death. If the testator has disposed of some of the property for which instructions have been left, any remaining property can be distributed.

The testator nominates an executor to be responsible for carrying out the testator’s wishes, mainly distributing assets to beneficiaries after all debts and taxes are paid.

A will should be kept in a safe place. A solicitor will usually store it at no charge and provide a copy to the testator. The executor should be told where the document is stored so it can be located easily upon the testator’s death. A will can also be deposited with a court registrar, usually for a fee.

Interpretation

If language used in the will make the will or part of it meaningless, or ambiguous on the face of it or in the current circumstances, a court is permitted to consider evidence of the testator’s intention to help interpret the language used.

A court can make an order to rectify a will to carry out the testator’s intentions if the document does not do this or a clerical error was made. A person can apply for such an order within 12 months of the death of the testator.

Revocation

A will is revoked by:

• the making of a new one;
• a marriage, civil partnership or de facto relationship;
• divorce, annulment or end of a civil partnership;
• express revocation;
• the testator burning, tearing or otherwise destroying it with an intention to revoke it;
• the testator writing on, or dealing with it, in a way that satisfies the court of an intention to revoke it.

Updates

A will should be updated in situations such as when:

• the testator marries or enters a de facto relationship;
• the testator separates, divorces, or ends a de facto relationship;
• the testator has children or grandchildren;
• an executor or beneficiary dies;
• a testator buys or sells property;
• a testator’s financial situation changes significantly.

If the change is minor, the testator will need to make a codicil, which is an authorised amendment. It needs to be in writing, and signed and witnessed by 2 people. If the change is major, a new will is usually required.

Family provision order

A family provision order is an order made by the court in relation to a deceased estate to provide from that estate for the maintenance, education or advancement in life of an “eligible person”. An “eligible person”, such as a spouse, de facto partner, former spouse, child or dependant, must apply for an order within 12 months of the testator’s death.  The court can make an order if it is satisfied the will did not make adequate provision for the applicant.

Dying intestate

A person who dies without a will is said to have died “intestate” and their estate is distributed according to the intestacy rules in the Act.

Under intestacy rules, the person’s estate becomes the property of next of kin, in order of priority listed under the Act. Usually this means assets pass to a spouse. If there is no spouse, the order of relatives who are eligible to inherit property is children, parents, siblings, grandparents, aunts and uncles, then cousins. Intestacy rules usually allow only family members to inherit property. If there are no eligible relatives, the estate passes to the state (Crown).

For advice or representation in any legal matter, please contact Armstrong Legal.