Making a will is one of the most important things a person can do for the people they love, yet it is one of the most commonly deferred. Many Australians either have no will at all or rely on an outdated or homemade document that fails when it is needed most. The result is avoidable expense, delay and, too often, conflict between the very people the deceased hoped to protect.
At Owen Hodge Lawyers, our wills and estates team helps individuals and families across New South Wales put their affairs in order, from straightforward wills to complex estate plans involving businesses, blended families and trusts. This guide explains what a valid will requires, what happens if you die without one, how estates are administered, and why a will is only one part of a complete estate plan.
Why you need a will
A properly drafted will lets you decide who receives your assets, in what shares, and on what terms. Just as importantly, it lets you choose the executor who will manage your estate, appoint a guardian for any children under 18, and structure gifts to protect beneficiaries who are young, vulnerable or financially inexperienced.
Without a will, none of these decisions are yours to make. The law decides who inherits, the court decides who administers your estate, and your family is left to navigate that process during a period of grief. A clear, current will is the single most effective way to reduce the risk of disputes and to make things simpler for those you leave behind.
What makes a will valid in NSW
Under the Succession Act 2006 (NSW), a valid will must generally meet a number of formal requirements. It must be in writing, signed by the will-maker (or by another person in their presence and at their direction), and that signature must be made or acknowledged in front of at least two witnesses present at the same time, who then attest and sign the will. These formalities exist to guard against fraud and to provide certainty about the will-maker’s intentions.
Beyond the formalities, two further requirements are essential. First, the will-maker must have testamentary capacity. The long-standing test, drawn from the case of Banks v Goodfellow, asks whether the person understands the nature and effect of making a will, appreciates the extent of the property they are disposing of, and is able to weigh the claims of those who might expect to benefit, without any disorder of the mind distorting their judgment. Second, the will must be made freely and voluntarily, without undue influence from another person.
A person must ordinarily be at least 18 to make a will, although the law allows limited exceptions, including for those who are married or where the court gives its authorisation. Where capacity may later be questioned, for example, where an elderly person makes significant changes to their will, careful drafting and contemporaneous file notes become especially important.
Choosing your executor and other key roles
Several roles sit at the heart of any will. The executor is responsible for administering the estate: locating the will, applying to the court for a grant of probate, identifying and gathering assets, paying debts and taxes, and distributing what remains to the beneficiaries. It is a position of real responsibility, and it is worth choosing someone trustworthy, organised and willing to act, as well as naming a backup.
The beneficiaries are those who inherit under the will. Where children under 18 are involved, a will can appoint a guardian to care for them, and can establish a trust so that a trustee manages any inheritance until the child is old enough to receive it. These structures allow you to provide for young or vulnerable beneficiaries in a controlled and protective way rather than handing over a lump sum outright.
Probate: administering the estate
When someone dies leaving a will, the executor usually applies to the Supreme Court of New South Wales for a grant of probate. Probate is the court’s formal recognition that the will is valid and that the executor has authority to deal with the estate’s assets. Banks, superannuation funds and share registries will typically require a grant before they release significant assets. Where there is no will, a similar process, an application for letters of administration, allows an eligible person to be appointed to administer the estate.
What happens if you die without a will
Dying without a valid will is known as dying “intestate”. In that situation, the intestacy rules in the Succession Act 2006 (NSW) determine who inherits, in a fixed order that may bear little resemblance to what you would have chosen.
In broad terms, a surviving spouse or de facto partner is the primary beneficiary. Where the deceased leaves a partner and no children, or children only of that relationship, the partner generally takes the whole estate. Where there are children from a previous relationship, the partner is entitled to the deceased’s personal effects, a statutory legacy (a fixed sum set by legislation and indexed over time, currently in the order of several hundred thousand dollars, though the exact figure should be confirmed as it changes), and half of the remainder, with the balance shared among those children.
If there is no partner, the estate passes down a statutory hierarchy, to children, then parents, siblings, grandparents, and more distant relatives in turn. If no eligible relative can be found, the estate ultimately passes to the State. Intestacy rarely produces the outcome a person would have wanted, and it removes any opportunity to provide for friends, stepchildren, charities or others who fall outside the statutory rules.
When a will can be challenged: family provision claims
Even a valid will can be contested. Chapter 3 of the Succession Act 2006 (NSW) allows certain “eligible persons” to bring a family provision claim if they believe adequate provision has not been made for their proper maintenance, education or advancement in life. Eligible persons can include a spouse or de facto partner, a former spouse, a child, certain dependents and grandchildren, and a person who was living with the deceased in a close personal relationship.
A family provision claim must generally be brought within 12 months of the date of death, and the court weighs a range of factors, including the size of the estate and the relationship between the claimant and the deceased. The prospect of such claims is one of the strongest reasons to obtain proper advice when drafting a will, thoughtful planning can reduce the risk of a claim, and the way an estate is structured can influence how any claim is dealt with.
A will is only part of the plan
A common misconception is that a will covers everything you own. In reality, several important assets often pass outside your will, which is why a complete estate plan looks beyond the will itself.
| Document or asset | What it does |
| Will |
Directs how your estate is distributed after death
|
| Enduring Power of Attorney |
Lets a trusted person manage your financial and legal affairs if you lose capacity
|
| Appointment of Enduring Guardian |
Lets a trusted person make health and lifestyle decisions if you cannot
|
| Advance Care Directive |
Records your wishes about medical treatment
|
| Superannuation |
Often does not pass under your will — a binding death benefit nomination directs who receives it
|
| Jointly owned property |
Property held as joint tenants passes automatically to the surviving owner, outside the will
|
| Family trusts and companies |
Assets held by a trust or company are not owned by you personally; control passes under the trust deed or shares
|
Superannuation deserves particular attention, because for many people it is one of their largest assets and it is not automatically governed by their will. A valid binding death benefit nomination is often needed to ensure it goes where you intend. Similarly the way property is held matters: a home held as joint tenants passes to the surviving co-owner by survivorship and never forms part of the estate, whereas a tenancy in common share does pass under the will.
For families with businesses, blended arrangements or vulnerable beneficiaries, a testamentary trust created within the will can offer significant advantages, including asset protection, potential tax efficiency for beneficiaries, and protection of an inheritance against a beneficiary’s own relationship breakdown or financial difficulties.
Keeping your will up to date
A will is not a “set and forget” document. Certain life events can change or even revoke it. In New South Wales, marriage generally revokes an existing will unless it was made in contemplation of that marriage, and divorce generally revokes any gift to a former spouse and their appointment as executor. Beyond these, the birth of children or grandchildren, the death of a beneficiary or executor, a significant change in your assets, or a move interstate or overseas are all good reasons to review your arrangements. As a general rule, it is wise to revisit your will every few years and after any major change in your life.
How Owen Hodge Lawyers can help
A well-prepared will and estate plan is an act of care for the people you love. It gives you control over your legacy, reduces the risk of disputes, and spares your family unnecessary cost and stress at a difficult time.
Our wills and estates team assists with drafting and updating wills, preparing powers of attorney and enduring guardianship appointments, establishing testamentary trusts, applying for probate and letters of administration, and advising executors and beneficiaries. We also act in estate disputes, including family provision claims. If you would like to put your affairs in order, or you need guidance in administering or contesting an estate, contact Owen Hodge Lawyers to arrange a confidential consultation.
This article contains general information only and is not legal advice. The law changes and its application depends on your particular circumstances. You should obtain advice specific to your situation before acting. The matters discussed above are governed by New South Wales law.