I Don’t Have a Will, Do I Need to Make One?

Wills and Estates

Without a valid will, you have no control over the distribution of your assets after you pass away. Many people believe they do not need a will because they own minimal assets or assume that, under Australian intestacy rules, their family will automatically inherit everything. This is a common misunderstanding that can result in legal challenges, family disputes, and your intentions being disregarded.

Wills and estates law is clear: the only way to ensure your wishes are respected and your loved ones are protected is by preparing a valid will that meets all legal requirements. Without this, you leave complex decisions about your property, guardianship of minor children, and management of your estate in the hands of the court, rather than your family.

Who is Eligible to Make a Valid Will?

Under New South Wales law, any person over the age of 18, or anyone who is married, can make a will, provided they have testamentary capacity.

Testamentary capacity means that you must have an understanding of the legal effect of a will, knowledge of the extent of your assets, and recognition of those who may reasonably be expected to benefit from your estate. You must also be capable of making rational decisions and not be affected by mental incapacity.

If you are under 18 years of age, you may make a will by seeking court approval. This is particularly relevant for minors with significant assets, such as those with incomes from sports, entertainment, or sponsorships.

What Are the Legal Requirements for a Will?

Wills and estates are governed by strict legal formalities to ensure your will is valid.

In New South Wales, section 6 of the Succession Act 2006 (NSW) stipulates that a valid will must:

1. Be in writing and signed by the testator (the will-maker) or by someone else in their presence and at their direction;

2. Be witnessed by two or more individuals who watch the testator sign the will; and

3. Have at least two witnesses who each attest and sign the will in the presence of the testator.

Meeting the legal requirements for a will is essential. Failing to do so can result in the document being considered invalid and your estate being dealt with under intestacy laws.

Who Can Witness a Valid Will?

A solicitor, including the one who drafted your will, can act as a witness to the execution of your will. Having a solicitor present is highly recommended to ensure strict adherence to legal formalities. However, any independent adult over the age of 18 can be a witness, provided they are not your spouse or a beneficiary named in your will.

Consequences of Not Meeting Legal Requirements for a Will

Attempting to create a will without complying with formal legal requirements puts your estate and family at significant risk. While section 8 of the Succession Act 2006 does allow for the possible recognition of an 'informal will', this path is uncertain, costly, and frequently protracted.

An informal will refers to a document that was not properly executed but may still represent your testamentary intentions. The Court must be satisfied that:

1. There is a document;

2. The document sets out your wishes for the distribution of your estate; and

3. You intended for the document to serve as your will.

The courts take into account the nature of the document, when and where it was found, and any evidence of your intentions shared with family and friends. However, relying on an informal will dramatically increases the likelihood of disputes and delays in administering your estate.

Examples of Informal Will Applications

Successful Applications:

• Statutory declaration made at a police station;

• Unsent text message expressing testamentary intentions;

• Word document entitled 'will.doc' on a home computer;

• Typed document on a mobile phone shortly before passing (Yu [2013] QSC 322);

• Unsigned will kit containing clear testamentary statements written days before death;

• Note recorded on an iPhone.

Unsuccessful Applications:

• Draft will never executed (Robinson v Jones [2015] VSC 222);

• Will drawn up by solicitor but never signed by the testator;

• Will kit completed by another on the testator's instructions but not signed.

These cases illustrate the risks involved in relying on informal wills which do not comply with legal requirements for a will. Courts can be unpredictable, and unsuccessful applications may lead to costly litigation for your loved ones.

Why You Should Not Rely on an Informal Will

Applications for recognition of an informal will are unpredictable, often unsuccessful, and can dramatically increase the legal costs for your family. Litigation may reach hundreds of thousands of dollars, lead to long delays, and impose emotional and financial stresses on your loved ones at a challenging time.

If you currently have a handwritten will, a will kit, or any document outlining your wishes that does not meet valid will requirements, it is vital to act now. Relying on informal documents exposes your family to unnecessary risks and expense.

Similarly, if you discover a document that appears to be a will or a codicil to a will after a loved one has passed away, consult with a solicitor specialising in wills and estates immediately for expert advice.

Expert Guidance to Meet Legal Requirements for a Will

Our Wills and Estates Team is committed to providing clear, authoritative, and supportive advice to help you:

• Create a valid will that ensures your preferences are honoured;

• Understand the essential legal requirements for a will in New South Wales;

• Avoid the uncertainty and high costs associated with informal wills;

• Protect your family from future disputes and lengthy court proceedings.

We will guide you confidently through the process of preparing a valid will, ensuring both compliance with laws and peace of mind for you and your family.