A will is only as good as its validity. A document that does not meet the legal requirements can be challenged, partly ignored, or thrown out entirely — leaving your estate to be distributed in ways you never intended. The rules in NSW are not complicated, but they are strict.
Under the Succession Act 2006 (NSW), a valid will must be in writing, signed by the will-maker (or by someone else at their direction and in their presence), and that signature must be made or acknowledged in front of two or more witnesses who are present at the same time and who also sign.
Witnesses must be adults of sound mind. Critically, a witness should not be a beneficiary of the will (or the spouse of a beneficiary) — if they are, the gift to them can fail even though the will itself stands. This is one of the most common and avoidable home-made will mistakes.
The will-maker must understand what a will is, broadly what they own, and who might reasonably expect to be provided for. Where capacity could later be questioned — for example with an older or unwell will-maker — it is worth taking extra steps at the time so the will is harder to challenge.
Home-made and kit wills routinely fail on small details: an unsigned page, a beneficiary as witness, unclear wording about who gets what, or no valid appointment of an executor. The cost of fixing these problems after death — sometimes through a court application — dwarfs the cost of a properly drafted will.
A will should be reviewed after major life events — marriage, divorce, children, a death in the family, or buying property. Marriage can revoke an earlier will, and divorce changes how parts of it operate. A valid but out-of-date will can be almost as much of a problem as no will at all.
General information only, not legal advice. For advice on your circumstances, contact HT Law Services on (02) 9280 1548.