How to make a will in NSW
In NSW, a will is valid under the Succession Act 2006 (NSW) if the testator is 18 or over, has testamentary capacity, signs the will, and the signature is witnessed by two independent witnesses present at the same time. A poorly drafted will can still be admitted to probate, but family-provision claims under Chapter 3 of the Act can significantly alter distribution.
The framework
Wills in NSW are governed by the Succession Act 2006 (NSW). Chapter 2 covers making, altering, and revoking wills. Chapter 3 governs family provision claims by eligible persons. The Supreme Court of NSW Probate List supervises grants.
The process
Confirm testamentary capacity
You must be 18 or over (exceptions apply for minors under court order) and understand the nature of making a will, the extent of your estate, and the claims of those who might benefit or be excluded.
Inventory your assets and liabilities
List real property, bank accounts, superannuation, investments, shares, personal effects, and debts. Note that jointly owned property and superannuation usually pass outside the will.
Choose your executor(s)
Choose one or more executors — people you trust to administer the estate. Consider naming a backup executor. For complex estates, consider a professional executor.
Identify beneficiaries and specific gifts
Decide who receives what — specific gifts (items, sums) and residue (everything else). Consider contingent gifts if a beneficiary predeceases you.
Consider family-provision risk
Under Chapter 3 of the Succession Act 2006 (NSW), eligible persons (spouse, former spouse, children, de facto, dependants) can apply to the Supreme Court for further provision. Document reasons for any exclusion.
Consider guardianship and testamentary trusts
If you have minor children, nominate a guardian. Consider testamentary discretionary trusts for asset protection, tax efficiency, or vulnerable beneficiaries.
Draft the will
Draft using a solicitor or a reliable template. Include revocation of earlier wills, appointment of executors, specific gifts, residue clause, powers of executors, and any testamentary trusts.
Sign in front of two witnesses
Sign the will in the presence of two independent witnesses present at the same time. Each witness then signs in the presence of the testator. Witnesses cannot be beneficiaries (beneficiary witnessing can cause the gift to fail under s 10).
Include a binding superannuation nomination separately
Superannuation does not pass automatically under the will. Complete a binding death benefit nomination with each superannuation fund so the fund pays to your estate or chosen beneficiaries.
Store the original and review
Keep the original in a safe place (safe deposit, NSW Trustee & Guardian, or solicitor's safe custody). Review after marriage, divorce, birth of children, or significant change in assets. Marriage revokes prior wills unless made in contemplation of marriage.
Forms and templates
- No prescribed will form — use a solicitor-drafted or reliable will
- Binding Death Benefit Nomination (each superannuation fund)
Common mistakes
- Having a beneficiary or their spouse witness the will (risks gift failure under s 10)
- Not having both witnesses present at the same time when the testator signs
- Assuming superannuation or jointly owned property passes under the will (it usually does not)
- Failing to consider family-provision risk when excluding a spouse or child
- Not updating the will after marriage, divorce, or birth of children
Get this process right with Quillio
Quillio drafts NSW wills — simple, complex, and testamentary-trust — with executor powers, family-provision notes, and superannuation coordination under the Succession Act 2006 (NSW). See /practice-areas/wills-estates-lawyers or start a free trial at /free-trial.
General information only — not legal advice. An invalid or poorly drafted will can cause partial intestacy, family disputes, or costly Supreme Court proceedings. Obtain legal advice for blended families, business interests, or cross-border estates.
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