Making Australian Wills ensures that one can distribute their personal assets according to their wishes after their death. In New South Wales (NSW), there are specific requirements that parties must meet to make a legally valid Will. In this article, we will explore the process of making of this legal document in NSW, including:
- Eligibility requirements
- The importance of regularly reviewing your Will; and
- The role of witnesses in the signing process
We will also discuss the importance of Will making in Australia and highlight some issues to consider when formulating a Will.
Process of Making Legally Valid Australian Wills in NSW
You can make a Will in NSW through various methods. Here are the steps to make a Will in NSW:
- Determine eligibility: To make a Will in NSW:
- you must be over 18 years old,
- you must have testamentary capacity,
- you must know the effect of the Will,
- you must be aware of the people who will benefit from your Will,
- you must be mentally capable, and
- you must be be aware of the extent of your assets.
- Choose a method: You can make a Will by using an online service provided by the NSW Trustee & Guardian, or by creating a Will with a lawyer or in front of a Notary Public.
- Provide accurate details: Ensure that you write your full name, current address, and identification details correctly. You also need to provide the following:
- A list of your assets. This may include your properties, bank accounts, superannuation fund, discretionary or unit trusts, and proceeds from your life insurance policy.
- The names and addresses of your beneficiaries if you have children under the age of 18, the name/s of whomever you’d like to appoint as their guardian(s)
- Specific gifts you wish to make to particular people or organisations, such as personal items or sums of money
- The details of your funeral if you have a pre-paid arrangement
- State your mental capacity: Explicitly state that you are of sound mind and free from undue influence.
- Nominate your executor: The executor is the person responsible for managing the financial affairs of the deceased person. An example would be reporting to beneficiaries or the surviving spouse of the deceased.
- Review and sign: Regularly review your Will to ensure that it accurately reflects your current wishes. A Will must be signed by the person making the Will and witnessed by two or more witnesses. Beneficiaries should not be witnesses as it may cancel out their entitlement.
Note: Check your state’s public trustee to know what are the legal documents and steps needed to create your Will.

Reviewing Australian Wills
Regularly reviewing your Will is important because there might be unexpected changes and circumstances. Some of the reasons are:
1. Changes in family structure. Your family structure may change over time due to births, deaths, marriages, or divorces. Reviewing your Will ensures that it reflects your current family situation.
2. Changes in assets. Your assets may change over time, and it is important to ensure that your Will reflects these changes. This includes acquiring new assets or disposing of existing ones.
3. Changes in beneficiaries. Your relationship with beneficiaries may change over time, and you may want to add or remove beneficiaries from your Will.
4. Avoiding disputes. Regularly reviewing your Will can help avoid disputes between family members and beneficiaries after your death.
As a general rule, it is recommended that you review your Will every 2-5 years, or whenever there are significant changes to your family structure or assets. By regularly reviewing your Will, you can ensure that your wishes are accurately reflected and that your loved ones are provided for after your death.
Role of Witnesses
The role of witnesses in the signing process of a Will is crucial to ensure that the Will is valid and legally binding. Here are some important points to consider:
- For a Will to be valid in NSW, the Will-maker must sign it in the presence of two witnesses, who must also sign it in the presence of the Will-maker.
- Witnesses must be over 18 years of age, mentally competent, and able to see the Will-maker make their signature or other sign as appropriate.
- Witnesses should not be beneficiaries of the Will, as it may cancel their entitlement.
- Witnesses do not need to read the Will, but they must be aware that it is a Will and that they are witnessing its signing.
- Witnesses do not need to sign the Will simultaneously, but they must be present together when the Will-maker signs it.
The role of witnesses is to provide evidence that the Will-maker signed the Will and that they did so freely and with full knowledge of its contents. Furthermore, without witnesses, a Will may be challenged or deemed invalid, which can cause significant problems for the beneficiaries and the executor of the will. Therefore, it is important to ensure that the witnesses are chosen carefully and that they understand their role in the signing process.
State Legislations on Australian Wills
Each state and territory in Australia has its own legislation regarding succession and Wills, and it is this legislation that determines the procedure for making a Will. The relevant primary legislation that contains the statutory rules for each Australian jurisdiction are:
- Queensland – Succession Act 1981
- New South Wales – Succession Act 2006
- Victoria – Wills Act 1997
- South Australia – Wills Act 1936
- Australian Capital Territory – Wills Act 1968
- Northern Territory – Wills Act 2000
- Western Australia – Wills Act 1970
- Tasmania – Wills Act 2008
While there are some minor points of difference between the acts, the fundamental requirements are that:
- The Will must be in writing.
- The testator must sign the Will (or someone else in the presence of and at the direction of the testator).
- The signature be made to execute the Will.
A legal Will is the only mechanism through which a testator can control who inherits their estate. Australian Wills are also the way that a testator nominates an executor, a trusted individual who carries out the last wishes of the deceased. Additionally, each Australian jurisdiction contains statutory provisions that set out the specific formal requirements of Wills.

Wills and Estate Lawyers at Your Service
Choose a family lawyer who is an expert on Wills, accounting, financial planning, and taxation in Australia. A Wills and estate lawyer can provide legal advice on the requirements for making a valid Will in Australia, including the formalities that must be followed, important documents needed, and the legal implications of the Will.
Our lawyers at JB Solicitors are experts on Wills and succession in Australia and we can provide valuable assistance in all aspects of an estate plan, from drafting and reviewing Wills to resolving disputes and making family provision claims. We can also represent you in the local or supreme court should legal matters arise about your Wills or estate.
Submit an enquiry today if you need help with your complex family situation regarding Wills and Estate plans.