Wills
Straightforward to do properly. Expensive to get wrong, and only ever discovered after you are gone.
Straightforward to do properly. Expensive to get wrong, and only ever discovered after you are gone.
Under the Succession Act 2006, a will must be in writing and signed by you, or signed on your behalf in your presence and at your direction. Your signature must be made or acknowledged in the presence of two or more witnesses present at the same time, and at least two of them must sign in your presence.
A beneficiary is not disqualified from witnessing, and the will itself stays valid — but the gift is void to the extent that it concerns that witness, or anyone claiming through them. It survives only if one of three things applies: at least two of the people who witnessed the will were not themselves receiving anything under it; or everyone who would benefit directly from the gift failing consents in writing and has the capacity to give that consent; or the court is satisfied you knew and approved the gift and that it was made freely and voluntarily. It is an entirely avoidable problem. Signing also has to happen in the right order and in the right presence, and a surprising number of home-made wills fail on exactly that.
You also need testamentary capacity: you must understand that you are making a will and what it does, know in general terms what you own, appreciate who might reasonably expect to benefit, and not be affected by a disorder of mind that distorts those judgments. Capacity is assessed at the moment of signing, and it is decision-specific — a diagnosis of dementia does not of itself mean a person cannot make a will. Where capacity is genuinely in question we take instructions from you alone, obtain a medical opinion, and keep detailed notes, because that file is what defends the will later.
This is the single most common and most costly misunderstanding in estate planning, and a will kit will never mention it.
Superannuation. Your super is held by the fund’s trustee, not by you, and it does not automatically form part of your estate. Your will does not direct it. Where it goes depends on your nomination with the fund, or on the trustee’s discretion if there is none. A binding nomination compels the trustee — but binding nominations are commonly lapsing, typically expiring after about three years unless renewed, and a lapsed one hands the discretion straight back. A "preferred" or non-binding nomination never bound anyone. Nominations also fail on technicalities: wrong witnessing, percentages that do not total one hundred, or nominating someone outside the class the law permits. Check the actual nomination on the actual fund.
Jointly owned property. If you own your home as joint tenants, it passes automatically to the survivor by right of survivorship, regardless of what your will says. Tenants in common is different — that share does form part of the estate.
Life insurance paid to a nominated beneficiary, and assets held in trusts or companies, also sit outside the estate.
The practical result is that a person can leave a carefully drafted will dividing everything equally between three children, and have the great bulk of their wealth go somewhere else entirely.
Marriage revokes your will. The whole thing, subject to limited exceptions: a gift to the person you are married to when you die survives, as does their appointment as executor, and a will made in contemplation of that marriage or of marriage generally is not revoked. Without a contemplation clause, an earlier will is gone and the estate may fall into partial or total intestacy.
Divorce does not revoke the whole will. It cancels only the provisions concerning your former spouse — a gift to them, their appointment as executor or trustee, and a power of appointment in their favour — and the will then operates as if they had died before you. That is subject to a contrary intention in the will, so a will can validly provide that a gift survives a divorce.
Separation does nothing at all. Not to your will, not to your super nomination. A separated but undivorced spouse remains your spouse for these purposes, and a former spouse remains an eligible person to make a family provision claim even after a divorce.
Having children, buying property, a beneficiary dying, an executor becoming unsuitable, or setting up a business are all reasons to revisit a will. It is a short appointment, not a rewrite of your life.
An eligible person may apply to the court for a family provision order — that is, ask the court to alter the effect of your will. Eligible persons include a spouse or de facto partner at the date of death, a child, a former spouse, a grandchild or household member who was wholly or partly dependent on you, and a person you were living with in a close personal relationship. Stepchildren are not eligible as such and must qualify through one of the dependency categories.
The application must be made within twelve months of the date of death, though the court can extend that. This is not a reason to avoid making a will — it is a reason to make one with advice, because a will drafted with the likely claims in mind, and with the reasons for the decisions recorded, is a far more defensible document than one that simply leaves someone out without explanation.
The law is the same whether you use a kit or a solicitor. What differs is that a kit gives you no advice, and every mistake in it is discovered after you have died, when it can only be fixed by a Supreme Court application funded by the estate you were trying to protect.
Kit failures are usually not signing failures. They are drafting failures: ambiguous wording, no substitute beneficiary if someone dies first, no residuary clause so part of the estate falls to intestacy, gifts of assets that pass outside the will anyway, and no thought given to who might claim.
If a document does not meet the formal requirements, the court has power to admit it as an informal will where satisfied the deceased intended that document to operate as their will. Courts have admitted some unlikely things. But it is a curative discretion, not an entitlement, it requires contested proceedings, the estate pays for them, and documents that read as drafts or notes routinely fail on precisely the question of intention. It is a rescue, not a plan.
A will does nothing until you die. Two other documents cover the period that worries families more.
An enduring power of attorney covers financial and legal decisions — bank accounts, bills, property, dealings with Centrelink and the ATO — and, unlike a general power of attorney, it continues to operate after you lose capacity, which is the entire point of it. It must be witnessed by a prescribed witness, such as a solicitor, who certifies that the effect was explained to you and that you appeared to understand it.
An enduring guardianship covers the decisions a power of attorney cannot touch: health, medical, dental, accommodation and lifestyle.
Both cease on death, when the will and the executor take over. Without them, if you lose capacity someone has to apply to NCAT to be appointed — a slower, more public and more expensive process, at the worst possible time. We can travel to you if getting to our Grafton office is difficult.
The law applies the same way to a kit as to a solicitor's will, but a kit gives you no advice, and most kit failures are drafting failures rather than signing failures — ambiguity, no substitute beneficiaries, no residuary clause, and gifts of assets that pass outside the will anyway. Every error is only discovered after death, when fixing it means a Supreme Court application paid for out of the estate. The saving is real but small, and the cost of getting it wrong falls on the people you were trying to look after.
Generally not. Super is held by the trustee of your fund, sits outside your estate, and your will does not direct it unless the death benefit is paid to your legal personal representative. Where it goes depends on the nomination you have made with the fund, or the trustee's discretion if you have not made one. Binding nominations are often lapsing and expire after about three years unless renewed, so it is worth checking what is actually on file with your fund.
No. Separation has no effect on your will at all, and none on your superannuation nomination. Only divorce or annulment operates, and even then it cancels only the provisions concerning your former spouse, with the will otherwise operating as if they had died before you. A former spouse also remains an eligible person to bring a family provision claim after a divorce, so separation is a good moment to review both your will and your nominations.
Yes, and more than most people expect — marriage revokes your will. The exceptions are limited: a gift to the person you are married to when you die survives, as does their appointment as executor, and a will made in contemplation of that marriage or of marriage generally is not revoked. Without a contemplation clause, an earlier will is gone and the estate may fall into intestacy in whole or in part.
An eligible person can apply to the court for a family provision order, which asks the court to alter the effect of your will. Eligible persons include a spouse or de facto partner, a child, a former spouse, and certain dependent grandchildren, household members and people in a close personal relationship. An application must generally be made within twelve months of the date of death, though the court can extend that. A will prepared with advice, which anticipates likely claims and records the reasons for your decisions, is far more defensible than one that simply leaves someone out.
Not necessarily. We prepare wills, powers of attorney and enduring guardianship documents at our Grafton office, and if you are not able to travel to us we can come to you. Signing does need to be done properly and in the presence of two witnesses at the same time, so it is worth arranging rather than improvising. Tell us your situation when you get in touch and we will work out the most practical arrangement.
Send a short enquiry and we will come back to you, usually the same business day. This is a free initial enquiry so we can work out whether we are able to assist you. It is not legal advice, and there is no obligation either way.
This page is general information about the law in New South Wales. It is not legal advice and does not take account of your circumstances. The law changes, and how it applies depends on the facts of your matter. Please contact us so we can work out whether we are able to assist you.