Writing a Will is an important task that ensures your assets are distributed according to your wishes after you pass away. In New South Wales, there are specific legal requirements that must be followed when writing a Will. Here's a guide to help you write a Will in New South Wales.
How to create your Will.
- Make a list of your assets. This includes everything you own such as property, investments, vehicles, bank accounts, and personal possessions. It's important to keep this list up-to-date, so you know exactly what you want to leave to your loved ones.
- Choose an executor. An executor is the person who will carry out your wishes and manage your estate after you pass away. Choose someone you trust, who is capable of managing your affairs and is willing to take on this role.
- Decide on beneficiaries. These are the people who will receive your assets after you pass away. You can choose to leave your assets to family members, friends, or charitable organizations.
- Write and sign your Will. It's recommended to seek legal advice when writing your Will to ensure it's valid and legally binding. Your Will should include your name, address, and date of birth. It should also state that it's your last Will and testament and revoke any previous Wills. Your Will should clearly state who your executor is, who your beneficiaries are, and how your assets will be distributed. To be legally binding, your Will must be signed in the presence of two witnesses.
The Succession Act 2006 No 80 provides that a Will should comply with the following formalities:
- The Will must be in writing. A Will can be handwritten or typed, as long as it's in written form.
- The Will must be signed by the testator. The testator is the person making the Will, and they must sign it in the presence of two witnesses. Even if the legal restrictions have been reduced over time, it's still preferable for the testator to initial any changes and sign the Will at the bottom or at the end of each page.
- The testator must sign the Will with the intention of executing it. The testator must be aware that they're signing a Will and that it will take effect upon their death.
- The testator's signature must be witnessed by two people. The witnesses must be over 18 years old. Beneficiaries should not be witnesses as it may cancel out their entitlement.
- The witnesses must sign the Will in the presence of the testator. The witnesses must see the testator sign the Will, and then they must sign it in the testator's presence. To avoid confusion, it is advisable for witnesses’ signatures to appear immediately below that of the testator.
- The Will must be dated. The date the Will is signed should be recorded on the document.
It's important to note that failure to meet these formal requirements could result in the Will being deemed invalid, and the testator's assets being distributed according to laws. To avoid this, it's recommended that you seek legal advice when drafting and executing your Will to ensure that it complies with all legal requirements.
- Store your Will. It's important to keep your Will in a safe place where it can be easily accessed by your executor after you pass away. There are several options for safekeeping, such as banks or insurance companies. Even if not listed as executors, lawyers will also typically hold a Will that they have created for a client. You can also use your own secure safe at home.
- Update your Will. It’s generally recommended that you review your Will regularly and update it whenever there is a significant change in your life, such as:
- Marriage, divorce or the breakdown of a relationship
- The birth or adoption of a child
- The death of a beneficiary or executor named in the Will
- Changes in your financial situation, such as an inheritance or a significant increase in assets
- Changes in your health or ability to manage your affairs
- Moving to another country or acquiring property in another jurisdiction
- Changes in tax laws that may affect your estate planning
You can amend your Will with a codicil (a legal document used to change a Will) but the best way to change your Will is to make a new one. Making a new Will automatically cancels your old one. Even if there are no significant changes in your life, your Will may need to be updated to reflect changes in the law or to address any mistakes or omissions that may have been made in the original document.
Reminders when writing your Will.
- Include your full name and address
- Make sure the Will has a date on it
- Provide your executor's full name and address
- Use a black or dark blue pen to sign and date the Will
- While it's not required, it's a good idea to sign and date the bottom of each page of the Will
- Do not affix anything with pin, staple, or paperclip to the Will
- Never take out staples or other fasteners from a Will after they've been attached
- Keep your Will in a secured place and ensure your executor knows the location of the Will
Remember that having an up-to-date Will is essential to ensure that your assets are distributed according to your wishes after your death. It's recommended that you seek legal advice from a qualified solicitor or Will writer to ensure that your Will is legally valid and accurately reflects your wishes.
In New South Wales, if a person dies without a valid Will, their estate will be distributed according to the rules of intestacy as set out in the Succession Act 2006 (NSW). It is worth noting that the rules of intestacy may not reflect the deceased person's wishes or intentions, and may result in their assets being distributed in a way that they would not have chosen. For this reason, it is generally recommended that everyone create a valid Will, to ensure that their assets are distributed in accordance with their wishes.