A will is a written document that sets out how the will-maker wants their property and possessions (their estate) divided after their death. Many people first come across the law relating to wills when they decide to make a will of their own. For others, it is when they are appointed executors or trustees of an estate and have to manage the affairs of someone who has died.
Making a will is not an act of ‘giving up’ on life. It is the positive process of creating a legal document in which you formally specify:
- the people who matter to you and how you want to provide for them when you die (the beneficiaries)
- any specific items you wish to give
- the person you trust to carry out the instructions in your will (the executor)
- any other instructions you may have (for example, specifying whether you would like to be buried or cremated).
There are many formal requirements to be aware of when you are making, changing or contesting a will.
In NSW, the legislation dealing with the formal requirements of making a will is contained in Chapter 2 of the Succession Act 2006 (NSW) which commenced on 1 March 2008.
Why make a will?
Everyone over the age of 18 should have a will. It is the only way to make sure your estate is distributed in the way you wish. Dying without a will may mean your estate passes to someone you would not wish to inherit, such as a parent you have had no contact with or a spouse you have separated from, but not divorced. A will may also make life easier for family and friends after your death. When someone dies, all existing arrangements with or on behalf of that person - for example withdrawals from accounts or transactions carried out under a Power of Attorney usually cease. Accounts in a sole name are usually frozen on death, except for payment of funeral expenses. Having a will may make it easier for beneficiaries to gain access to funds, particularly in a small estate where Probate may not be required.
Who can make a will?
Anyone over 18 years of age can make a will. Everyone should have a will, particularly as most people now have a superannuation fund, which may include a large insurance policy. A will made by a minor (a person under 18) is not valid, unless it is made in contemplation of a marriage that takes place, the minor is married, or the court has approved the will under section 16 of the Act.
Capacity to make a will
People who make wills must have testamentary capacity. This means they must be of sound mind, memory and understanding at the time of making the will. In simple terms, a person is regarded as having the required capacity if they:
- know what a will is
- realise in general terms the amount and type of property they are disposing of
- are able to weigh the ‘moral claims’ that they should be considering when deciding who to leave property to.
A will-maker must also know and approve of the contents of their will.
People who are old or sick
A will can be challenged on the grounds that the will-maker did not have sufficient capacity. This arises most frequently when the will-maker is ill or extremely old when they make or change their will. If possible, you should make your will while you are still in good health. Do not put it off until you are very old or sick.
If the issue of capacity is likely to arise, you should obtain evidence of your testamentary capacity in the form of a medical certificate from your doctor or health worker.
People with an intellectual disability
Testamentary capacity may also be an issue for people with an intellectual disability. While evidence of capacity is not legally required, it may be desirable in some cases where the disability is severe or if there is a likelihood that the will could later be challenged.
However, if it is clear that the person does not have the necessary capacity to make a will, sections 18 to 26 of the Succession Act provide for court authorised wills for those lacking testamentary capacity. The court may, on the application of any person, authorise that a will may be made, altered or partially or fully revoked on behalf of a person lacking capacity either through immaturity (under 18) or a particular incapacity. The person on behalf of whom the application is made must be alive at the time the order is made. The will, when executed, must be deposited with the Registrar but a failure to do so will not invalidate the will.
Does a lawyer have to draft a will?
There are no formal requirements about who can draft a will. You can write one yourself. However, your will must be signed and witnessed formally, otherwise it may be considered invalid. In practice, most people use a lawyer, the NSW Trustee & Guardian (previously called the Public Trustee) or a private trustee company to draw up their wills. Unless your will is very simple, it is best not to write your own will. It is too late to correct a mistake after you have died.
There is no fixed fee for the preparation of a will. The price varies with the size of the organisation that draws it up and the complexity of the will. The Law Society recommends that you approach two or three different lawyers about their rates before choosing one. The Society’s Solicitor Referral Service can provide names of lawyers in your area who deal with wills and estates. The NSW Trustee & Guardian or a private trustee company can also prepare a will for you.
It is important to remember that if your will is incorrectly worded, no-one may know until it is too late - after you have died. For the relatively low cost of having a will prepared professionally, you may save your estate a much higher cost - the legal fees if your will has to be interpreted or is contested.
Things to consider when making a will
Before you start making your own will, or go to see a lawyer, you need to consider the following points:
- What do you own (your estate)?
- Who do you want to leave your estate to?
- Who will be the executor of your will?
- Do you want to leave directions about the payment of debts and funeral expenses?
- Should you set up a trust or leave gifts directly?
- Do you have any concerns about who will be a guardian for your children?
- What sort of burial or cremation arrangements do you want?
- What digital assets do you have?
What is in your estate?
Your estate may include things such as your house, land, car, bank accounts, jewellery, clothes, household goods and investments. Proceeds from life insurance policies and superannuation may be assets in your estate, but that will depend on the wording of the policy or superannuation trust deed. Remember, where the deceased and another person own property as joint tenants, the surviving co-owner automatically owns the deceased’s share regardless of a will or intestacy rules (see If the deceased owned property with someone else in the After the Grant of Probate or Letters of Administration chapter).
Who do you want to leave your estate to?
Beneficiaries can be individuals or organisations such as charities. See Who is eligible to inherit if there is no will in the Procedure on death if there is no will chapter for more information about who your estate will pass to if you don’t make a will, including de facto and same-sex partners; adopted, ex-nuptial and stepchildren, and half siblings.
Should you set up a trust?
If you do want to set up a trust (for example for your children), you must decide who you wish to appoint as trustee. Your executor can also be your trustee. You should seek professional help if you wish to set up a trust in your will. See Testamentary trust wills in the Making a valid will chapter.
Who should be your executor?
It is important to appoint someone you trust because they will be responsible for seeing that your wishes are carried out and that your body is disposed of in the manner you wish. Usually a major beneficiary is nominated, unless the beneficiary is under 18 years of age or mentally incapable of acting.
It is a good idea to also name an alternative executor to take responsibility in case your first executor dies before you, or shortly afterwards, or is mentally or physically incapable of acting as your executor. See Appointing an executor in the Making a valid will chapter.
Appointing a guardian of your infant children
You may wish to appoint a guardian if the other parent of your children is deceased. If there is a dispute about who will be guardian, the court will make the appointment. Whatever you write in your will may be taken into consideration by the court.
Deciding on burial or cremation arrangements
Although it is common to leave instructions about burial or cremation in a will or elsewhere, it is up to your executor to decide whether or not they will carry out your wishes.
It is advisable to inform your next of kin or your executor of your wishes as well as including that information in your will. Often your funeral will have taken place before your will is read.
Many of us will not have given a thought to what will happen to our social media accounts such as Facebook, Twitter and Instagram, email accounts and perhaps cryptocurrency such as Bitcoin.
Consideration should be given to this if you are making or reviewing your will.
Unfortunately, the requirements of social media companies and other digital service providers are not uniform when it comes to the death or incapacity of a customer. The NSW Government has commissioned a review by the NSW Law Reform Commission about access to people’s social media accounts and other digital assets after they die or become incapacitated. The final report was tabled in Parliament on 5 March 2020.