Wills and Estates (NSW)

At Armstrong Legal, our wills and estates team has a wealth of experience dealing with all aspects of testamentary and probate law. It is crucially important that everyone has a will so that after their death their estate is administered according to their wishes. The area of law that relates to wills and estates in New South Wales is governed primarily by the Succession Act 2006 and the Probate and Administration Act 1898.

What are Wills and Estates?

A will is a legal document that summarises the testator’s wishes for their estate after their death and appoints a trusted individual to act as an executor to administer the deceased estate. An estate includes most of the deceased’s property and assets, as well as many liabilities and debts. A solicitor can help guide a testator through the types of assets and property that need to be included in the will. For instance, company and trust-held assets, and property that is owned in joint tenancy with another person, are not considered assets of the deceased estate and are not included in the will.

Those items that are included in the will should be described in a way that makes them easily identifiable. For example, a piece of art might be listed with information including the artist, title, date, size and medium. It can lead to conflicts if an item is described in a general way (“my gold necklace”), especially if beneficiaries interpret this description differently. It is far better to give a full description (“my gold necklace with a locket holding a photograph of my parents”) and also list the location of the item (“stored in my safety deposit at Brisbane Bank, Queen Street”).

Updating a Will

A will is a formal document and its validity can be affected by unauthorised edits, such as erasure or writing in the margins. Any changes need to be properly executed according to will drafting conventions. Where alterations are required, it is far better to completely rewrite and properly execute the will.

A minor change or alteration to an existing will can be made through the addition of a codicil. In order for the codicil to be legally valid, the document must be signed by the testator and (unless an application has been made for dispensing power) witnessed according to the established procedural rules. A codicil must be carefully drafted so that the will and codicil as a whole clearly express the testamentary wishes of the deceased. There is no legal limit to the number of codicils that can be made, but more significant changes should be made through a complete revision of the will instead of an amendment through codicil.

What is an Informal Will?

In NSW, a will must be drafted according to certain legal formalities in order to be valid, otherwise the document is described as an informal will. A solicitor can ensure that a will follows the established rules, many of which are complex. There are, however, a few simple rules that everyone should know before they embark on making a will.

A will must be a written document (either handwritten or typewritten), initialled by the testator on all of the pages and signed at the end of the document. The testator must sign in the presence of two witnesses who will then add their own signatures to the document. These witnesses need to be impartial, so they cannot be a spouse of the testator or a beneficiary of the will.

If a challenge is filed against the will and the will found invalid, then the estate may be ruled intestate. However, the courts are loath to ignore the wishes of the deceased so they will make every effort to validate a will, even an informal will.

Who Can Make a Will?

Anyone with the required testamentary capacity may legally make a will as long as they are an adult, or a minor who is married or contemplating marriage. An exception may be made at the discretion of the court for a minor who clearly understands the legal implications of writing a will. The most common reason for a minor to make a will is if they have already inherited property or have started to earn income from their activities.

Who Cannot Make a Will?

A person cannot make a will unless they understand the significance of their decisions, and have the requisite testamentary capacity. A solicitor can only take instruction to draft a will if they are satisfied that the testator fully comprehends the consequences. A testator must also act of their own volition in making a will, without undue interference or pressure from someone else.

Enduring Power of Attorney

A person with an enduring power of attorney can still have the testamentary capacity necessary to make a will. A solicitor will assess the particular circumstances of the client, and may contact the testator’s physician for expert advice.

Urgent Instruction

Wills that are written under urgent instruction (such as when someone is dying) are susceptible to challenge on the grounds that the deceased lacked testamentary capacity. A solicitor will take certain steps in order to safeguard the validity of the will, including:

• Meeting with the testator privately (or with an independent interpreter present) to obtain instruction.
• Asking open-ended questions in order to assess the client’s testamentary capacity. For example, who are the members of your family? What are your assets? To whom do you want to leave your assets? Why have you chosen to distribute your estate in that way?
• Ascertaining if the testator is taking any medication, exhibiting concerning behaviour or has been diagnosed with an illness or disorder that might adversely affect their testamentary capacity.

Are Wills Registered in New South Wales?

There is no longer a public registry of wills in New South Wales, but there are private facilities that offer registration facilities. The NSW Trustee & Guardian does provide a service for the storage of power of attorneys, wills and enduring guardianship documents. There is also facility to voluntarily lodge a will with the Probate Registry of the Supreme Court of NSW, but it is rarely used and provides no guarantee of the lodged document being the latest will.

Our New South Wales Wills and Estate team can help prepare your will to include all of your wishes for your estate. For more information about wills and estates in NSW, please phone Armstrong Legal on 1300 038 223 or send through an email to make an appointment.