A will that does what you intend.

What makes a will valid in NSW

Section 6 of the Succession Act 2006 sets out the rules.

1. The will must be in writing.
2. You must sign it, or another person must sign it for you, in your presence and at your direction.
3. You must sign, or acknowledge your signature, in front of at least two witnesses who are present at the same time.
4. At least two of those witnesses must then sign the will in your presence. They do not need to sign in front of each other.

A beneficiary should not witness the will. Under the Act a gift to a witness can be lost unless an exception applies.

What your will should cover

1. An executor. The person who will apply for probate and manage your estate. You can name a second executor in case the first cannot act.
2. Beneficiaries. Who receives specific gifts and who receives the rest of your estate, called the residue.
3. Substitutes. Who receives a share if a beneficiary dies before you.
4. A guardian for children under 18, if both parents have died.
5. Trusts. Any trust for children or other beneficiaries, including a testamentary trust.

Some assets often pass outside your will. These include superannuation, life insurance and property you own with another person as joint tenants. Your plan needs to deal with each of them separately.

Any part of your estate that your will does not deal with passes under the intestacy rules.

How marriage and divorce affect your will

Marriage. Under section 12 of the Succession Act, marriage revokes a will. There are exceptions:

1. A gift to the person you are married to when you die is not revoked.
2. The appointment of that person as executor, trustee or guardian is not revoked.
3. A will made in contemplation of a particular marriage, or expressed to be made in contemplation of marriage generally, is not revoked by that marriage.

Divorce. Under section 13, divorce or annulment revokes gifts to your former spouse and their appointment as executor, trustee or guardian, unless your will shows a contrary intention. The will then operates as if your former spouse had died before you.

The rest of the will stays in place. Divorce does not revoke an appointment of your former spouse as trustee of property left on trust for beneficiaries that include their children.

Review your will when a relationship ends.

Where to keep your original will

The executor will need the original will to apply for probate. The Supreme Court does not grant probate of a copy where the whereabouts of the original are known, and a lost will needs further proof.

Options for keeping the original:

1. With us, in safe custody at no charge for storage, or released back to you as the original. The choice is yours.
2. With NSW Trustee and Guardian, in its WillSafe storage service. Contact NSW Trustee and Guardian to confirm it will accept your document.
3. With the Supreme Court of NSW, which accepts wills for safe keeping in a sealed envelope. A fee applies.

Tell your executor where the original is kept.

Common questions

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