Making a valid will
A will should comply with the legal requirements of executing a will which are found in section 6 of the Succession Act 2006 (NSW). Unless each and every one of the requirements below is met when making a will, the court may not consider the will to be valid and the estate will be dealt with as if there were no will (as an intestate estate). The requirements for making a valid will are:
- it must be in writing, either typed or handwritten
- it must be signed by the will-maker or by some other person in the presence of and at the direction of the will-maker
- the will-maker’s signature must be made or acknowledged in the presence of two or more witnesses, present at the same time
- at least two of those witnesses must attest (witness) and sign the will in the presence of the will-maker (but not necessarily in the presence of each other)
- the signature of the will-maker or person signing at the direction of, and in the presence of the will-maker must be made with the intention of executing the will.
It is not essential that the will-maker signs at the foot of the will. It is not essential for a will to have an attestation clause.
A witness does not need to know that it is the will-maker’s will that they are witnessing (section 7).
Signing a will
Although the legal requirements have been relaxed over time, it is still advisable for the will-maker to sign the will at the foot or end of the will and on each page, and to initial any alterations.
Signature by direction
Section 6(1)(a) allows for a will to be signed by a person other than the will-maker, in the presence of and at the direction of the will-maker. This is useful if the will-maker is unable to sign for some reason. If it is necessary for a will to be signed in this way, it is highly advisable to seek advice from a lawyer.
Witnessing a will
The law allows witnesses to sign the will separately, without being in each other’s presence, as long as they are both present together when the will-maker signs the will. Nevertheless, it is advisable that the will-maker and the witnesses all sign immediately after each other, in each other’s presence and use the same pen. This is still the best way to make sure a will is validly executed because then there can be no argument that the formal requirements were not complied with.
Who can be a witness?
A beneficiary should not be a witness as they may lose their entitlement under the will. Section 10 allows the spouse of a beneficiary to be a witness. Section 10 also allows a beneficiary to be a witness if one of the following circumstances applies:
- there are at least two other attesting witnesses who are not beneficiaries
- written consent is obtained from all who would benefit directly if the gifts to the witness were not allowed; or
- the court is satisfied that the will-maker knew and approved of the gift and made it freely and voluntarily.
It is still recommended that a beneficiary does not witness the will.
A person who is unable to see that a will-maker has signed a document cannot act as a witness to a will. That includes someone who is temporarily unable to see (section 9).
If a will is not witnessed
Section 8 of the Succession Act sets out when the court may dispense with the formal requirements for the execution, alteration or revocation of a will, for instance if it has not been properly witnessed. If you are unsure whether an informal document might be held to be a valid will, you should seek legal help.
Although an attestation clause is no longer necessary, most wills have one. It records the circumstances of the signing and witnessing of the will. Attestation clauses are particularly important in some situations. For example, if the will-maker cannot read the will, it should be read to them (preferably by one of the witnesses), in the presence of the other witnesses to the will. The attestation clause should then record the circumstances. If the will-maker cannot write, they can place a mark where they would otherwise sign; and the attestation clause should state that because the will-maker was unable to sign, a mark was made by them in place of a signature. Alternatively, if someone else signs by direction for a will-maker who is physically unable to sign, the attestation clause should reflect the circumstances.
Suggested procedure for executing a valid will
- The will-maker should read the will, and make sure they understand and are happy with everything in it.
- There should be two adult witnesses who are not beneficiaries under the will.
- The will-maker should date the will before signing.
- In the presence of the witnesses, the will-maker should:
- sign the will at the bottom of each and every page
- initial any alterations.
- In the presence of the will-maker and each other, each witness should:
- sign the will at the bottom of each and every page
- initial any alterations
- The witnesses should print their names and addresses below their signatures. Copies of the will, with the names of the will-maker and the witnesses printed on them, should be made and marked ‘Copy: Original kept at …’
Points to note
- Copies should not be signed or they may become ‘valid’ wills.
- The will-maker and the witnesses should all use the same pen as evidence that they were all together when the will was signed.
- Nothing should be attached to the original will with a pin or paper clip.
- No alterations should be made to the will after it has been signed.
Every will should include a residuary clause. This will deal with any assets not specifically disposed of in your will and the proceeds of any specific legacies which lapse (for example, if a beneficiary has died within 30 days of you). Failure to include a residuary clause may mean that part of your estate will be administered in accordance with intestacy rules which may not be in accordance with your wishes.
The Succession Act (section 31) provides that if any gift is ineffective, the will takes effect as if the gift formed part of your residuary estate. Section 42 of the Act states how a gift of residue will be construed. Legal advice should be obtained if you have concerns about the wording of a residuary clause.
Any debts you owe must be paid first before your beneficiaries receive anything. There are specific rules about which of your assets are used to pay your debts. If you wish to specify from which assets your debts are to be paid, you should seek professional help with your will.
A will made overseas will generally be valid in NSW if it is valid in the country where it was made (Succession Act, section 48).
Since 1989 the court may consider that a document is an ‘informal will’, even if the document has not been executed in accordance with the formal requirements of section 8 of the Succession Act.
The court must be satisfied that:
- there is a ‘document’, as defined in section 21 of the Interpretation Act 1987 (NSW) — many types of documents have been admitted as an informal will by the court, such as a tape recording, an unsent text, a document on a computer, a video and a USB stick
- the document was meant to state the deceased’s testamentary intentions but has not been executed validly
- the deceased intended the document to be their will.
If you are not sure whether a document is a valid will, you should refer it to a lawyer.
Even though section 8 exists, it is recommended that you execute your will in accordance with the formal requirements.
Keep the will in a safe place
After a will is made, you should keep it in a safe place (for example, at the bank or with a lawyer). It is sensible to keep a copy among your personal papers, with the name of the will-maker and the witnesses printed in and a note explaining where the original is kept. It is also wise to tell your appointed executors where the original will is kept.
The Succession Act allows any person to deposit a will in the office of the Registrar for payment of a fee (section 51).
It is also a good idea to keep a clear, comprehensive list of your assets (bank accounts, investments, insurance policies, title deeds and so on) and update this from time to time. This will make your executor’s task much easier and quicker. It will be helpful if you leave a list of people and organisations to be notified of your death. These might include Centrelink, the Department of Veterans’ Affairs, superannuation funds, clubs, particular relatives or friends.
What happens if a beneficiary dies?
A major change introduced by the Succession Act (section 35) is that if the will-maker leaves a gift to a person who dies within 30 days of the will-maker, the will takes effect as if the beneficiary died immediately before the will-maker. An exception to that rule occurs if the beneficiary was issue of the will-maker and died leaving children who survive the will-maker by 30 days. In that case the gift will pass to the issue equally and not to the deceased beneficiary’s estate as was the case previously (section 41).
The will-maker can exclude the 30-day rule from their will or lengthen or shorten the period. The will-maker can also make specific provision in the will for what is to happen if a beneficiary dies within 30 days of the will-maker’s death. This is another good reason for having your will prepared professionally.
Determining time of death
If two or more people die at the same time and the order of death cannot be determined, the law in NSW presumes that the oldest died first. The estates are divided accordingly.
Related wills are used where people want to relate their wills in some way. Joint wills are not common. Most will-makers make separate documents. However, couples often make what are known as ‘mutual’ or ‘mirror’ wills where they may leave everything to each other in the frst instance and then to the same beneficiaries after they have both died.
Although the provisions of this kind of will are binding on the first to die, it may not be on the surviving will-maker who can change his or her will at any time. The beneficiaries of the original wills may have some rights at law, but it will require expensive court action.
For the provisions of the surviving will-maker’s will to be binding, there should be evidence, preferably in the wills, of the contract between the parties not to change their wills without the knowledge and consent of the other. Those wills are usually called ‘contract wills’. Contract wills can cause legal difficulties and should not be entered into lightly or without professional advice.
Testamentary trust wills
Testamentary trust wills are becoming increasingly popular. Under such a will, your estate is not left outright to your beneficiaries, but is held in trust for them by the person appointed in your will as trustee, under certain conditions stipulated in your will.
It is strongly recommended that you use a lawyer, a private trustee company or the NSW Trustee & Guardian to draft the will if you wish to set up a trust.
Some reasons for setting up a trust are:
- tax considerations
- if a beneficiary has an intellectually disability
- if a beneficiary has a problem, for example, in relation to alcohol, drugs or gambling
- if a beneficiary is under 18 years of age
- if the will-maker has more than one family.
Normally the beneficiaries will not have what is called a vested interest in the trust, that is, they cannot claim an outright share in the estate. The will may provide that the trust is to be wound up at a particular date (for example, on the death of a beneficiary), and may state exactly who will then inherit the share that was held in trust for that beneficiary. Alternatively, the trustee may have the power to determine when the trust will end (subject to the law) and which beneficiaries will inherit the estate and in what proportions. The latter type of trust is known as a ‘discretionary trust’.
Appointing an executor
Although a will should appoint an executor, it is still valid if it does not. The executor is responsible for seeing that the terms of the will are carried out, defending it against any challenge and applying for Probate if necessary. Anyone over the age of 18 can be appointed executor. Usually a major beneficiary is nominated. It should be someone you trust, who will act responsibly, and who has agreed to be your executor. Appointing someone younger than yourself, or appointing more than one person, is a safeguard against your appointment becoming void if your executor dies before you. If more than one executor is appointed it should be made clear whether they are to act jointly or if the second person is only a substitute. It may also be easier (although it is not compulsory) to have an executor who lives in the same state as you.
If a person is unwilling or unable to be executor
The executor of a will is responsible for seeing that the terms of the will are carried out. The executor completes the legal documents and searches for the assets; or arranges for a lawyer or trustee company to do this. Being an executor may involve:
- applying for the death certificate from the NSW Registry of Births, Deaths and Marriages
- arranging for the disposal of the body (the deceased may have stated in their will what they want done with their body, but such wishes are not binding on the executor)
- looking after the funeral arrangements if the will specifically requests this, or if there is no next of kin available
- locating and identifying the assets of the deceased.
You may wish to leave your executor a cash legacy under your will to compensate for the time involved in being an executor. Even if this is not done, every executor has the right to apply to the Supreme Court for payment from the estate for the work they have carried out (see Payment of executors in the After the Grant of Probate or Letters of Administration chapter).
If a person appointed as an executor does not wish to act, or is not able to act, they can formally renounce the appointment. The substitute or alternative executor will then act. If no alternative is named in the will, or no executor named at all, the Succession Act provides who will manage the estate (usually the major beneficiary). This person is called an administrator rather than an executor, but their responsibilities are essentially the same.
Appointing a third party as executor
If you don’t have a close relative or friend to name as executor, you might consider appointing a lawyer, the NSW Trustee & Guardian or a private trustee company. If you appoint a lawyer, it can be the lawyer who prepared the will, although this is not essential. It is also a good idea to appoint a corporate body such as NSW Trustee & Guardian or a private trustee company when the estate is large or complicated, or will require long-term administration, as this avoids problems that might arise if an appointed executor dies or if some family members are unhappy about the terms of the will. Private trustee companies can be found online.
Appointing a lawyer or trustee company as executor may make the administration of the estate a bit quicker, but it is a more expensive option. Before a lawyer accepts being appointed as your executor, the Law Society requires them to advise you of certain cost-related aspects.