In New South Wales, any person aged 18 or older can make a will, provided they have testamentary capacity. This means the person understands the nature and consequences of making a will, knows the general extent of their assets, and comprehends the claims they should consider—such as spouses or children. In limited cases, minors may be permitted to make a will, such as when married or with court approval. A will made under duress, or by someone who lacks mental capacity, may be challenged in court, so it's essential to ensure the process is done correctly.

Your will should clearly outline how you want your estate to be divided. This includes naming your executor(s), listing beneficiaries, and specifying any gifts—such as money, property, or personal items. You should also include instructions for what happens to the remainder of your estate (the "residue") after specific gifts have been distributed. If you have minor children, your will should appoint a guardian. It’s also important to consider creating testamentary trusts for vulnerable beneficiaries. The more specific and comprehensive your will, the less room there is for confusion or disputes after your passing.

Yes, your will can be changed or updated at any time, provided you still have testamentary capacity. Changes can be made by drafting a new will or through a codicil—a separate legal document that amends part of your existing will. However, codicils are less common today, as it is generally clearer and safer to create a new will. Significant life events—such as marriage, divorce, the birth of a child, or the death of a beneficiary—often require updates. It’s also recommended to review your will every few years to ensure it remains relevant and valid under current laws.

Dying without a valid will is known as dying intestate. In this case, your estate is distributed according to the Succession Act 2006 (NSW). This legal formula may result in your estate being inherited by relatives in a specific order, which may not reflect your personal wishes. For example, your spouse may not automatically inherit everything if you have children from a previous relationship. The process of administering an intestate estate is often more complex and time-consuming, and it may require the appointment of an administrator by the court. Having a valid will avoids these complications and gives you control over your estate.

An executor is the person you nominate in your will to administer your estate after your death. Their duties include applying for probate (if required), identifying and valuing assets, paying any debts and taxes, and distributing the estate according to your instructions. Executors may also be responsible for managing trusts, selling property, dealing with beneficiaries, and resolving disputes. You can appoint one or more executors, and they can be individuals (such as family members or friends) or professionals like solicitors. Choosing a trustworthy and capable executor is crucial to ensuring your estate is handled efficiently and in accordance with your wishes.

Yes. Even if your will is valid and clearly written, certain individuals can contest it by making a Family Provision Claim under the Succession Act. Eligible persons include a spouse, de facto partner, children (including adult or stepchildren), and sometimes people who were financially dependent on you. They must convince the court that they were not adequately provided for in the will. Other types of challenges can involve claims of undue influence, fraud, or lack of testamentary capacity. To reduce the risk of your will being contested, it’s important to seek legal advice and ensure your wishes are well-documented and reasonable.

While it's legally possible to make your own will using templates or DIY kits, doing so carries serious risks. Homemade wills often contain unclear language, errors in execution (such as improper witnessing), or omissions that make them invalid. These issues can lead to costly disputes, court delays, or even your estate being distributed against your wishes. A lawyer ensures your will meets legal requirements, properly reflects your intentions, and accounts for your personal circumstances, including blended families, business interests, and tax considerations. The peace of mind and legal protection offered by a professionally drafted will is well worth the investment.

A testamentary trust is a trust created through your will, which comes into effect after your death. Instead of assets passing directly to a beneficiary, they are held in trust and managed by a trustee on the beneficiary’s behalf. Testamentary trusts offer several advantages: they protect assets from creditors, relationship breakdowns, or irresponsible spending, and they can provide tax benefits, especially for young or vulnerable beneficiaries. Including a trust in your will is especially useful in complex family situations, or when you want to control how and when a beneficiary receives their inheritance.

Choosing the right executor is a key decision in the estate planning process. Your executor should be trustworthy, organised, and willing to take on legal and financial responsibilities. Ideally, they should also have good communication skills, as they’ll be working with beneficiaries and possibly professionals like solicitors or accountants. Some people choose a spouse or adult child, while others appoint a solicitor or professional trustee to avoid potential conflicts or reduce the burden on family members. You can name more than one executor, but make sure they can work together harmoniously and are clear about their roles.

Yes, your will can include specific gifts—such as a sum of money, jewellery, family heirlooms, furniture, or sentimental items—that go to nominated individuals or charities. Being clear and detailed about these gifts helps prevent misunderstandings and disputes among beneficiaries. You can also include instructions for distributing the remaining assets (your “residuary estate”) after specific gifts have been made. If your personal items are valuable or emotionally significant, it’s a good idea to describe them carefully and make sure your executor knows where they are located.

You should review your will every two to five years, or immediately after a significant life event such as marriage, separation, divorce, the birth of children or grandchildren, or a major change in assets or relationships. A will does not automatically update with your life circumstances, and outdated wills can cause confusion or fail to reflect your current wishes. If your named executor or beneficiaries pass away or if your financial situation changes significantly, it's important to revise your will to ensure it remains valid and effective.

Yes, you can exclude someone from your will, but doing so may increase the risk of it being contested—especially if the person excluded is an eligible claimant under NSW family provision laws. This includes spouses, children, and other dependents. If you plan to exclude someone, you should document your reasoning in a separate statement and seek legal advice to minimise the risk of a successful challenge. It’s also important to ensure your will is properly drafted and executed to avoid it being questioned on technical or legal grounds.

Probate is the process by which the NSW Supreme Court confirms the validity of a will and grants authority to the executor to administer the estate. The executor must apply for probate by submitting key documents, including the will, death certificate, and a statement of assets and liabilities. Once probate is granted, the executor can legally collect the deceased’s assets, pay any debts, and distribute the estate. Probate is usually required for estates involving real estate, significant bank accounts, or investment portfolios. The process can take several weeks to a few months, depending on the complexity of the estate.

If your original will can’t be found after your death, it may be presumed that you intended to revoke it—especially if it was last in your possession. However, if a signed copy exists, the court may still accept it if there’s sufficient evidence that it was your last valid will. This process can be complex, costly, and uncertain. To avoid this situation, store your original will in a safe place—such as with your solicitor, in a secure home location, or with the NSW Trustee—and let your executor or a trusted person know where to find it.