A will is one of the most important documents most people will ever sign. Yet many wills are made in a hurry, at a kitchen table, with a kit from the newsagent. If the formal steps are missed, the document may not work the way the person intended. Families can then face delay, cost and stress at a hard time.
The good news is that the basic rules are simple. Each state and territory has its own succession law, but the core steps are much the same across Australia. This guide explains what those steps are and where things tend to go wrong. It is general information only, and the rules in your state may differ.
Why the formal rules matter
A will only takes effect after the person who made it has died. By then, nobody can ask them what they meant or whether they signed it. That is why the law sets out formal steps for making a will. In NSW, these requirements are found in section 6 of the Succession Act 2006 (NSW). If they are not met, a court may not treat the document as a valid will.
When that happens, the estate may be handled as if there were no will at all. Dying without a valid will is called dying intestate. A set formula in the law then decides who receives the estate. In Queensland, for example, the Succession Act 1981 (Qld) decides who benefits. That formula may not match what the person actually wanted.
The basic requirements for a valid will
Across Australia, the core rules look similar. The will must be in writing, either typed or handwritten. It must be signed by the person making it, with the intention that it be their will. In NSW, the signature must be made or acknowledged in front of at least two witnesses who are present at the same time.
The witnesses then sign the will while the person who made it is present. In NSW, the witnesses do not need to be in each other’s presence when they sign. They also do not need to know that the document is a will. In Queensland, the Public Trustee of Queensland says a will must be in writing, signed and dated in the presence of two witnesses aged over 18.
Who can be a witness
A witness must be able to see the person sign. In NSW, someone who cannot see the signing, even for a short time, cannot act as a witness. The person making the will should also avoid using a beneficiary as a witness. A beneficiary who witnesses a will may lose their gift.
NSW law has some exceptions to that rule. A beneficiary may still receive the gift if at least two other witnesses are not beneficiaries. The gift can also stand if everyone who would benefit from it failing gives written consent. Failing that, a court can allow it if satisfied the gift was known, approved and freely made. The spouse of a beneficiary may witness a will in NSW.
Mental capacity
The person making the will must have the mental capacity to make a will. Victoria Legal Aid explains that this means understanding what a will is and what it does. The person should know roughly what they have to leave, though not the exact value. They should also understand who might have a reasonable claim on their property, such as someone who depends on them financially.
Capacity can become an issue when someone is elderly or unwell. Victoria Legal Aid suggests an affidavit can help where the signing was unusual. For example, a doctor could assess the person’s capacity and sign an affidavit about it. This can lower the risk of a later challenge.
Signing and witnessing step by step
Small details at the signing stage can save a lot of trouble later. A NSW legal guide published through the State Library of NSW gives practical tips that make sense in any state. They are good habits rather than strict legal rules. Still, following them makes the will much harder to question.
- Date the will before it is signed.
- Use two adult witnesses who are not beneficiaries.
- Sign the bottom of each page and initial any changes, with everyone using the same pen.
- Have the witnesses print their names and addresses under their signatures.
- Do not sign copies, pin or clip anything to the will or alter it after signing.
The Public Trustee of Queensland also warns against writing changes on the original will. Any marks or alterations can cause problems later. If something needs to change, it is better to make a new will. A new will can cancel earlier ones with a statement revoking them.
Witnessing by video link
Some states now allow remote witnessing in certain cases. In Victoria, a will can be witnessed over an audio visual link if set conditions are met. One witness must be a lawyer or justice of the peace. The witnesses must be able to see the person sign. Everyone must sign on the same day, and the witness must include a statement that the requirements were met.
These rules are not the same in every state. Do not assume a signing over a video call will be valid where you live. Check the current rules for your state or territory before relying on remote witnessing. A lawyer or your state legal aid service can tell you what applies.
Will kits and homemade wills
Will kits are sold online, at newsagencies and through Australia Post. Some are free, but most cost money. They can work for simple situations, yet the Public Trustee of Queensland points out real risks. A homemade will may not be signed or witnessed properly. The wording may not do what you want, and it can be challenged or found invalid.
The cost of a lawyer is often small next to the cost of a dispute. Blended families, business interests and overseas assets all add risk. Our article on speaking to a lawyer when putting your will together looks at this in more detail. The Public Trustee in some states can also help people make a will. In Queensland, it can do so at no cost.
Business owners have extra things to think about. Shares, partnership interests and business assets may need careful planning in a will. If you run your own company, legal guidance for starting your own business can help. A sound setup makes later planning easier.
What if the rules were not followed?
A will that misses a formal step is not always lost. In NSW, section 8 of the Succession Act 2006 lets the court dispense with the formal requirements in some cases. The court can treat a document as an informal will if it was meant to be the person’s will. Examples include an unsent text message, a document on a computer, a video and a USB stick.
That said, relying on an informal will is a poor plan. Proving it means a court application, which takes time and money. The outcome is never certain. It is far better to sign the will properly in the first place.
Keeping your will up to date
A valid will can become out of date quickly. Victoria Legal Aid notes that marriage and divorce can affect whether a will is valid. The Public Trustee of Queensland lists these life changes as reasons to review your will. It is a good idea to check your will after any big change in your family or finances.
Separation raises many questions, and some common beliefs are simply wrong. Our piece on myths about divorce covers several of them. If you are setting up a new venture, business lawyers can clear up questions about structure and ownership that may also affect your will. Keep the original will somewhere safe, such as with a lawyer or bank, and tell your executor where it is.
Frequently asked questions
Can a beneficiary witness my will?
It is best to avoid it. In NSW, a beneficiary who witnesses a will may lose their gift unless an exception applies. Using two adult witnesses who receive nothing under the will is the safest approach.
Is a will kit legally valid?
A will kit can produce a valid will if it is completed, signed and witnessed correctly. The risk lies in mistakes with wording or signing. If your affairs are not simple, it is worth getting legal help.
Can my will be witnessed over a video call?
It depends on your state. Victoria allows witnessing by audio visual link if conditions are met, including that one witness is a lawyer or justice of the peace. Check the current rules where you live before relying on this.
Do I need to register my will?
Registering a will is not one of the formal steps that make it valid. In NSW, any person may deposit a will with the Registrar for a fee. What matters most is keeping the original safe and telling your executor where it is.
This article is general information only and is not legal advice. Wills and succession laws differ between states and territories, and they change over time. For advice about your own situation, speak with a qualified lawyer.