Making a Will in NSW
Legal Requirements for Making a Will in NSW
Having a valid and up-to-date will is a way to best ensure your estate is distributed according to your wishes.
In NSW, for a will to be valid:
- it needs to be in writing.
- be executed in accordance with the formal requirements,
- be made by a will-maker who is of sound mind, memory and understanding,
- not be the product of fraud, and
- not be revoked.
To be of sound mind, memory, and understanding requires the will-maker (known as the ‘testator’) to have testamentary capacity at the time of making their will and not be suffering any insane delusions because of a mental illness or impairment.
Choosing Your Executor
When selecting your executor, there are several things to consider.
The executor’s role is an important one and should be given to a trusted person who will administer the estate in accordance with the testator’s wishes. As part of the administration, the executor is responsible for applying for probate, identifying and calling in the estate’s assets and liabilities, paying the estate’s debts and liabilities, closing bank accounts, defending claims against the estate, and distributing the estate.
The executor must be at least 18 years of age and should be trusted to act diligently and impartially. It is usually wise to select an executor who is younger in age than, and likely to outlive, the testator.
Choosing a Guardian for Minor Children
A guardian is someone who is appointed to take care of and assume responsibility for the deceased’s children under the age of 18 years (i.e, minor children). If you nominate someone to be guardian, that person will have the ability to make decisions on behalf of your surviving children.
Where only one parent dies, the surviving parent will assume sole responsibility for any minor children.
Where both parents die, the guardian provision will come into effect, depending on the order of each parent’s death and the operation and validity of each parent’s will.
Protecting against a Family Provision Claim: Making Provision for Certain Family Members and Dependents
Engaging professional legal advice when drafting a will is the best means of protecting an estate from claims after death. A lawyer can assist with advising on testamentary wishes, including any risks arising from a full or partial disinheritance. An experienced wills and estate solicitor will be able to advise on ways to minimise the risk of future claims against the estate, regardless of the testator’s testamentary wishes.
Having a will that is ambiguous or outdated may increase the risk of a claim against the estate after death, particularly in the context of blended families.
For example, where a person wishes to disinherit a child or former spouse, an experienced solicitor will be able to provide advice on ways to reduce the risk of a claim or dispute after their death. What options are available will depend on the facts and circumstances of each case, but may include the preparation of supporting documents explaining the testator’s reasons for disinheriting the particular beneficiary; leaving the beneficiary a smaller amount to inherit (rather than nothing); transferring assets so they are outside the reach of family provision legislation; or obtaining a court-approved release from a beneficiary preventing them from bringing a claim after the testator’s death.
In NSW, a family provision claim will only succeed if the claimant is an eligible person and can satisfy the court that adequate provision for their proper maintenance, education, or advancement in life has not been made by the will of the deceased person. Therefore, leaving a particular beneficiary a lesser amount rather than nothing can sometimes be an effective means of disposing of a moral duty towards them. However, the amount will depend on the facts and circumstances of each case, and an experienced wills and estates lawyer should be consulted on this point.
Incorporating a Testamentary Trust in Your Will: Advantages and Considerations
A testamentary trust is a trust that is established upon the death of a testator by operation of the testator’s will. The effect of a testamentary trust is that all or part of the estate assets are held on trust, for the benefit of chosen beneficiaries, for the trustee to distribute at some late date, either in accordance with the terms of the trust or at their discretion.
Testamentary trusts can offer advantages, including asset protection and tax advantages; however, they are not suitable for everyone and often consist of complex and lengthy documents.
Formal Execution: Ensuring Your Will is Legally Binding
In NSW, the will is a legal document that must be signed by the testator and signed and witnessed by at least two non-beneficiary witnesses. That is, the witnesses must not be beneficiaries under the will, or they risk losing their benefit, unless specific criteria are satisfied.
The Role of the NSW Trustee & Guardian in Estate Administration
The NSW Trustee & Guardian is a government agency that can be appointed as an independent and professional executor of a will or take over the task if an executor renounces or resigns from their duty.
Dying Intestate: What Happens When You Die Without a Will in New South Wales?
In New South Wales, if a person dies without a valid will, they are said to have died ‘intestate’.
If a person dies without a valid will and the deceased estate contains assets that require a grant before they can be administered (i.e. real estate), a person (usually the person with the greatest interest in the estate or the deceased’s next of kin) may need to apply for a grant of Letters of Administration. Letters of Administration is a grant that appoints an administrator of the deceased’s estate for the purpose of administering the estate. Once appointed, the administrator will have the authority to administer the estate, distribute the deceased’s estate in accordance with the rules of intestacy (the intestacy rules usually proscribe how an estate must be distributed when a person dies without a will), and finalise administration of the estate.
In NSW, where a person dies without a will, the estate will pass in the order of relatives as follows – the spouse or de facto partner (sometimes shared with children who are not children of the surviving spouse/de facto), children, parents, siblings, nephews and nieces, grandparents, aunts and uncles, and cousins. Australian intestacy rules setting out those eligible to inherit vary from state to state and can often involve complex family structures and challenges identifying eligible relatives, so it is important to obtain advice specific to your scenario.
The Role of an experienced Wills & Estate Lawyer in Making a Will
Engaging an experienced wills and estate lawyer to prepare an estate plan can help best ensure that your testatmentary wishes are carried out by minimising the risk of claims on the estate and to achieve greater peace of mind. This can help ensure you make a valid will so that your hard-earned assets pass to those you choose. A solicitor will also be able to store your will in a safe place. If your circumstances change and you believe you may need to update your will, an experienced wills and estate solicitor will be best placed to advise.
It is generally advisable to avoid a post office will or DIY will kits as these do not allow an assessment of the risks arising from your testamentary wishes. These types of wills may be more prone to challenge as they are often prepared in private and because a lawyer is not involved in the process, at the time of your death there will be no solicitor file notes available to be relied upon should a claim be made. Generally, a post office will or DIY will presents a higher risk of challenge or contest than a will prepared by a solicitor.
A post office will or DIY will may also deliver unfavourable tax consequences, which a professionally drawn will may have avoided.
Need Help Crafting a Legally Binding Will? Reach Out to Our Wills and Estate Lawyers Today!
Empower Wills and Estate Lawyers can help make sure your will is valid in accordance with the Succession Act 2006 (NSW). Whether you need to make a new will or update an existing will, would like advice on how you have decided to leave your assets, or would like help making rational decisions, our legal practice can help ensure your assets are passed on to those you choose after your death and reduce the risk of claims against the estate. We can also assist if you believe you need to make a codicil or would like us to handle your affairs more generally.
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Disclaimer: the information in this article relates to NSW law as at the date it was written and is general information only. It does not constitute legal advice and should not be relied upon as legal advice. It may contain information or links to sources which are no longer current. If you have a question or legal issue, we recommend you contact a lawyer and obtain legal advice that takes into account your specific facts, circumstances, needs and objectives.