What is a Will?

A Will is a legal document used by the willmaker (also known as the testator or testatrix) to make a declaration on the intentions of their wishes upon their death.

The key characteristics of a Will include:

• Revocability: A Will may be revoked by the testator at any time until their death, provided that the testator has the necessary capacity and intention to revoke it. Capacity in this sense is the same as that required to make a valid Will.
• Takes effect only on death: The person executing a Will must intend it to take effect after their death.
• Prescribed form: Subject to limited exceptions, a Will must be in writing, signed by the testator (or someone at the testator’s direction and in the testator's presence), and witnessed by at least two persons.
• Not stationary in nature: As a Will is not effective until the testator’s death, it may include property acquired by the testator after the date of the Will, provided that it is owned by the testator at the time of death. The testator can dispose of their property during their lifetime, and the Will cannot prevent that.

For example, suppose Tom made a Will in 2012 leaving all his motor vehicles to his son Matt, at which time Tom owned a Land Rover and a BMW X5. In 2020, Tom sold the two cars and acquired a Tesla Model Y. The Tesla was the only motor vehicle Tom owned when he passed away in 2024. In this case, only the Tesla will pass under the Will.

What does a Will include?

A Will is not limited to the disposition of the testator’s property. It usually includes instructions on:

• Who will carry into effect the testator’s intention - this person is nominated in the Will as the Executor;
• Who is to receive the deceased’s assets - this person is named in the Will as the Beneficiary;
• The arrangements for the deceased’s funeral;
• The appointment of a legal guardian for any of the deceased’s children who are under 18.

Who can make a Will?

A person must have the mental capacity to make a Will. This is known as testamentary capacity. The testamentary capacity test adopted by the Supreme Court of NSW is based on the British case of Banks v Goodfellow (1870) LR 5 QB 549, which was concisely restated in the more recent NSW case of Lim v Lim [2023] NSWCA 84 , which requires the testators to:

• The capacity to understand the nature of the act of making a Will and its effects;
• The capacity to understand the extent of the property [that is] the subject of the Will;
• The capacity to comprehend [the] moral claims of potential beneficiaries; and
• The absence of mental disorders or delusions which affect the testator’s “mental faculties [so as] to make them unequal to the task of disposing of [their] property” (to quote Bailey v Bailey [1924] HCA 21; (1924) 34 CLR 558 at 571-572 per Isaacs J).

The Will must also not be made under undue influence or induced by fraud. Anyone over 18, or anyone under 18 who is married or contemplating marriage, can make a Will if they have testamentary capacity. An unmarried person under 18 or a person lacking testamentary capacity can make a Will with Court approval.

What makes a Will valid?

In addition to the mental elements discussed above, a Will is generally not valid unless it satisfies the formality requirements set out in section 6 of the Succession Act 2006 (NSW):

• It is in writing (handwritten, typed, or printed).
• It is signed by the testator in the presence of at least two witnesses, who also need to sign the Will in the presence of the testator; if it is signed by a person at the testator’s discretion, it must be so signed in the presence of the testator and the witnesses, and that fact must be made clear to the witnesses.
• The testator’s signature is made with the intention of executing the Will.

However, section 8 of the Succession Act 2006 (NSW) provides that the court may dispense with the formal requirements of a Will if the court is satisfied that the ‘document’ propounded as a Will appears to contain the deceased person’s wishes (known as ‘informal Will’). Schedule 4 of the Interpretation Act 1987 defines a ‘document’ to be ‘any record of information’. Case law suggests that audiotape (in Treacey v Edwards (2000) 49 NSWLR739 ), and videotape (in Estate of Chan [2015] NSWSC1107) have been admitted to Probate under the dispensing power of the NSW Supreme Court.

Informal Will or Formal Will?

Making an informal will may seem convenient, but the benefits of a formal will cannot be underestimated:

• An informal Will unnecessarily burdens your estate for proving the criteria of an informal Will, as the legal burden of proof lies on persons who propound the Will to provide evidence around the preparation and execution of the informal Will.
• A duly executed Will raises a presumption that the testator knew and approved of the contents of the Will, making it less onerous for the Executor to prove the mental elements of the testator.
• The informality of expression in oral statements tends to cause uncertainty and ambiguity of the terms of the Will and increases the risk of litigation.

PW Lawyers have extensive experience in estate planning and Will drafting. We can help you draft a will that takes account of all your wishes for your estate. Contact us for a free thirty-minute consultation.

Any information on this website is general in nature and should not be taken as personal legal advice. We recommend that you speak to a lawyer about your personal circumstances.

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