Yes. The law in NSW does not require a solicitor to prepare a will.
The will must still meet the formal rules in section 6 of the Succession Act 2006 (NSW).
If it does not, the Court may refuse to accept it, and your estate may pass as if you had no will.
Who can make a will
You must be over 18.
You must have capacity when you make the will.
Capacity means you understand what you are doing and how your estate will be shared after your death.
The Supreme Court of NSW can make a will for a person under 18 or a person who lacks capacity, on application.
The formal rules for a valid will
- The will must be in writing. It may be typed or handwritten.
- You must sign it, or another person must sign it for you, in your presence and at your direction.
- You must sign, or acknowledge your signature, in front of two or more witnesses who are all present at the same time.
- At least two of those witnesses must sign the will in your presence.
- You must sign with the intention that the document is your will.
A witness does not need to know that the document is a will.
A person who cannot see you sign cannot be a witness.
Who should not witness your will
Use two adult witnesses who receive nothing under the will.
A beneficiary who witnesses a will may lose the gift.
The law allows the gift to stand only in limited cases, such as where two other witnesses are not beneficiaries, or where the Court is satisfied you knew of and approved the gift.
The spouse of a beneficiary may witness, but it is safer to use independent witnesses.
The risks of a will you write yourself
The law does not stop you writing your own will.
The risks come from the rules above and from the words you use.
Where people get caught
Signing without two witnesses present at the same time
The will may fail the formal rules, and the Court may treat your estate as if there were no will.
Asking a beneficiary to witness.
The beneficiary may lose the gift.
Leaving out a residue clause.
Assets you did not mention, or gifts that fail, may pass under the rules for dying without a will.
Changing the will after it is signed.
Crossing out or adding words after signing has no effect. Changes made before signing should be signed or initialled by you and the witnesses.
Pinning, clipping or stapling papers to the original.
Marks on the original can raise questions about whether pages were removed or added.
Not following a will kit's instructions exactly.
Legal Aid NSW warns that a kit will may be invalid if the instructions are not followed exactly.
More complex plans, such as trusts in a will, gifts to young children or provision for a person with a disability, need careful drafting.
Section 8 of the Succession Act lets the Supreme Court accept a document as a will even where it was not signed and witnessed in the proper way.
The Court must be satisfied that:
- There is a document, as defined in the Interpretation Act 1987.
- The document sets out the person's wishes about their property after death.
- The person intended the document to be their will.
The Court has accepted items such as a computer file, a video and an unsent text message.
An informal will is not a safe plan.
The person applying must ask the Court for a declaration under section 8 and prove the deceased's intention.
They must also tell the Court about any earlier will, or who would take on an intestacy.
People who would lose out must consent or be given notice.
A dispute can turn the application into a contested case decided by a judge.
Keep the original in a safe place
Tell your executor where it is.
You can store it with your solicitor, with NSW Trustee and Guardian, or deposit it with the Supreme Court of NSW.
Do not sign copies.
Common questions
Is a handwritten will valid in NSW?
It can be, if it is signed by you in front of two witnesses present at the same time, and both witnesses sign in your presence.
Can my partner witness my will if they receive a gift?
A beneficiary should not witness. They may lose the gift unless an exception in the Succession Act applies.
Will the Court accept a note or a video as my will?
It may, under section 8, if the Court is satisfied you intended it to be your will. The application costs time and can be disputed. A properly signed will avoids this.
Have your will checked or prepared so it meets the rules. Call (02) 8062 6300.
This article is general information only. It is not legal advice for your situation.