If you’re one of those people who likes to take full control and save money, or who simply doesn’t have a great affection for lawyers — it’s understandable that you may want to know how to make a Will in NSW yourself.
This blog provides you with the key fundamentals of writing your own Last Will and Testament, the pitfalls to avoid, and — perhaps most importantly — whether it’s actually a good idea!
How To Write a Will NSW — What You Must Include
Your Last Will and Testament is a legal document that outlines when, and to whom, your assets should be divided after your passing. In New South Wales, Section 6 of the Succession Act (2006) details the key inclusions that are required for your Will to be considered legally enforceable.
In most circumstances, if just one of these elements is incorrectly presented — or omitted altogether — the Will shall be considered invalid. This means after your demise, the court will act as if no document exists at all, and your assets and belongings will be shared by the rules of intestacy. Even if this means ignoring your stated wishes.
Here are the requirements you MUST include in your self-written Will:
The Will Must Be in Writing — Either Handwritten or Typed
Admittedly, the courts in recent years have accepted non-traditional, 21st-century-type Wills — including electronic documents and video recordings. However, these are considered on a case-by-case basis and it’s difficult to guarantee that a non-written Will will be declared valid.
Therefore, either type or legibly handwrite your Will to ensure that it isn’t considered informal.
You Must Provide Personal Details
Include in the Will your full name, identification information, your current address — and also those of your witnesses.
In most circumstances, only a person of 18 years or older can create a Last Will and Testament.
You Must Declare Testamentary Capacity
To create a Will, you need testamentary capacity. This means that you have the legal right and mental ability to create the document, be of sound mind, not be writing the Will under duress, and fully understand the extent of your assets and liabilities.
Furthermore, you should declare that this is your Last Will and Testament, and that it supersedes and revokes all other Wills you have written before.
Declare Your Beneficiaries and Executor
You should name the person who will be the Executor of your Will — someone who will organise your assets, finances, and belongings after you pass, and then distribute them to your assigned beneficiaries. This can be any person you wish, as long as they are 18 years or older, and ideally, someone you know and trust.
Additionally, you should state the names of the people who will receive a share of your assets after your demise.
You Must Sign the Will As the Testator
It sounds obvious, but failure to sign the Will is the most common reason that Last Wills and Testaments are considered invalid.
You must sign the Will at the end of the document and at the foot of every page. Furthermore, if you make any alterations to the Will, you should initialise these amendments.
You Need Witnesses to Make the Document Valid
Two witnesses must watch you sign your Will — and then sign the document themselves to say they observed you doing so. Ideally, to reduce the chances of your Will being challenged, you and your witnesses should sign the document at the same meeting, using the same pen, in the same ink.
Furthermore, bear in mind that a witness shouldn’t also be a beneficiary — as this may prevent them from receiving their stated entitlements, or jeopardise the validity of the Will.
How To Create a Will NSW — Additional Steps You Should Take
In addition to the above-required procedures and inclusions, there are a few further recommended steps to follow:
Make Copies of the Will
You should create duplicates of your Last Will and Testament, ensure they include your name and those of your witnesses, and state: Copy — Original Kept at (name location of the original Will).
These copies should NOT be signed! Otherwise, they may be confused with the original — and if you subsequently change your Will, the duplicates might be treated as valid and enforceable documents.
Store Your Will in a Safe Place
Keep your Last Will and Testament securely in a locked, fireproof box or safe at your home — or ideally, at the offices of your solicitor.
Furthermore, inform your chosen Executor — and close friends and family if desired — of the Will’s location. This can save delay and confusion after your demise.
Regularly Review and Update Your Will
It’s valuable to read, check, and if required, update your Will at frequent intervals.
As time passes, your feelings, relationships, and assets may change — or your family might welcome new spouses or children whom you wish to include in your Will. Regularly reviewing your Last Will and Testament means that your wishes and current assets are all up to date.
Detail Your Funeral Arrangements
If you have specific wishes regarding your funeral — include these in your Will.
Additionally, if you have prepaid your funeral with a specific undertaker, or met premiums for funeral insurance, include these details in your Last Will and Testament.
Name Guardians for Your Children
It’s upsetting to consider passing on and leaving young children behind — but it may need to be considered.
If you are the sole parent of children under the age of 18, state in your Will who you wish to act as guardian after your demise. Naturally, it’s important to discuss this matter with the prospective guardian before you name them in your Last Will and Testament.
Alternatives to Writing Your Own Will
If you wish to create a Will without using a lawyer, but don’t want to write the entire document yourself — you have two main alternatives.
Off-the-Shelf Wills
Also known as DIY Wills, these are paper or online documents that provide a one-size-fits-all approach to Will-making. In theory, they include all the legal jargon and required elements, and need you to do nothing more than tick some boxes, fill in a few blanks, pay a fee, and then print and sign.
While relatively cheap and cheerful — these wills are frequently challenged, offer little nuance for personal circumstances, and can lead to your wishes being ignored.
NSW Trustee and Guardian
The NSW Trustee and Guardian can create a nominally ‘free’ — or discounted — Last Will and Testament on your behalf. Usually, you will need to agree to the Trustee becoming the Executor of your Will, and they will subsequently receive funds by charging your estate for these services after your death.
Unfortunately, these service fees are often hefty — typically higher than those charged by a lawyer — therefore reducing the available inheritance of your beneficiaries. In Queensland, the extortionate fees of the Trustee — and its frequent double-charging — became so extreme the Public Advocate had to take remedial action.
Furthermore, with the Public Trustee, you have no guarantee your document will be created by a legal professional, often takes a long time for them to process, and cannot deal with anything other than a simple, standard, Last Will and Testament.
How Do I Make a Will in NSW? Use a Solicitor!
The main issues with writing your own Will, using an online service, or utilising the assistance of a Public Trustee are the same — your Will may not fully represent your intended wishes, provide the most appropriate distribution of your estate, or be valid in a court of law.
Even if you’re determined to create your own Last Will and Testament — at the very least, ask a solicitor to review your document. They will check for any crucial omissions, and establish that your Will meets all the requirements for being declared valid by the court.
However, in most cases, an experienced Wills and Estates lawyer is the most cost-effective, straightforward, and legally valid method of preparing your Will.
These lawyers ensure that your wishes are accurately represented — and followed — in your Last Will and Testament, irrespective of your circumstances’ complexity. Furthermore, they can provide guidance and advice on associated matters such as taking care of finances with a Testamentary Trust, safeguarding your personal wellbeing with Enduring Guardianships, and addressing future incapacity with Power of Attorney.
Writing Your Own Will — An Admirable, But Risky Approach
Just because you know the basics of how to prepare a Will in NSW — it doesn’t mean it’s a good idea. Without extensive legal experience, you could leave your legacy wide open for challenge, have the document declared invalid by the court, and have your intended bequests ignored.
Falzon Legal are Sydney’s Wills and Estates experts. Considerate and patient, we take the time to understand your asset circumstances, your wishes, and your concerns — and then create a robust Will that perfectly represents your intentions.
With face-to-face meetings in our office, your home, or senior care facility — we build a trusted partnership to compassionately form your legacy. And with set fees — not hourly billing — you’re guaranteed transparent and affordable charges.
You don’t need to know how to make a Will in NSW! Allow Falzon Legal to take all the strain — chat with us today.