A will is not just a document for later in life. It is the written instruction that can spare your family uncertainty, delay and avoidable conflict when they are already dealing with a loss. Knowing how to make a valid will in NSW means addressing both what you want to happen and the legal steps that make those wishes enforceable.

In New South Wales, a will can be straightforward, but it must meet specific requirements under the Succession Act 2006 (NSW). A well-written document can still cause problems if it is signed incorrectly, witnessed by the wrong people or made when there are doubts about capacity. The practical approach is to prepare carefully, sign properly and review the document when life changes.

1. Decide what your will needs to cover

Before drafting, make a clear record of your assets and liabilities. This usually includes your home or investment property, bank accounts, superannuation, shares, vehicles, business interests, personal possessions and debts. It is also worth considering digital assets, such as online accounts, cryptocurrency and files held in cloud storage.

Not every asset passes through your will. For example, jointly owned property may pass automatically to the surviving owner, depending on how it is owned. Superannuation is often held by the fund trustee and may require a valid binding death benefit nomination. Assets in a family trust or company are also subject to separate legal and governing arrangements. This is where tailored advice can prevent a will from giving a false sense of certainty.

You should also consider who you want to benefit, whether any gifts should be specific or flexible, and what happens if a beneficiary dies before you. A clear residuary clause is essential. This deals with everything left after debts, expenses and specific gifts have been paid.

2. Choose an executor you trust

Your executor is responsible for carrying out the will. Their work may include locating assets, applying for probate, paying debts and tax, dealing with property, and distributing the estate to beneficiaries. The role can take months, and sometimes longer where there is a property sale, business interest or dispute.

Choose someone organised, trustworthy and willing to take on the responsibility. Many people appoint an adult child, sibling, close friend or professional adviser. You can appoint more than one executor, which may be sensible where the estate is complex or family circumstances are sensitive. However, multiple executors must be able to work together, so appointing several people is not always the easiest option.

Name an alternate executor as well. That simple step can avoid a gap if your first choice has died, lost capacity or no longer wishes to act when the time comes.

3. Make clear gifts and provide for children

Ambiguity is one of the most common sources of estate disputes. Descriptions such as “my savings”, “my jewellery” or “my house” can become difficult where assets have been sold, replaced, refinanced or mixed with other property. Use accurate names and descriptions where possible, particularly for real property, companies, trusts and valuable personal items.

If you have children under 18, your will should nominate a preferred guardian. A court ultimately determines arrangements based on the child’s best interests, but your nomination is an important statement of your wishes. Think through the practical reality: who has the capacity, relationship and stability to care for your children, and would you nominate an alternate?

A direct gift to a minor can be legally possible, but it is not always practical. Money or property may need to be held on trust until a nominated age. The right structure depends on the size of the gift, the child’s needs and the people available to manage it.

4. Confirm that you have testamentary capacity

To make a valid will, you must have testamentary capacity. In plain English, you need to understand that you are making a will, have a general understanding of the assets you own, recognise the people who might reasonably expect to benefit, and be able to make a rational decision about how your estate should be distributed.

Age, illness or a diagnosis does not automatically mean a person lacks capacity. Equally, capacity can be questioned where there is dementia, serious cognitive decline, medication affecting comprehension, or a major change to a long-standing estate plan.

If capacity could later be challenged, it is wise to obtain legal advice and, where appropriate, supporting medical evidence at the time the will is made. A solicitor can also take detailed instructions and keep attendance notes that help demonstrate the person understood and approved the will. This is especially valuable where someone is excluding a close relative or making an unexpected gift.

5. Ensure the will is made freely

A will must reflect your own decisions. Pressure from a family member, carer, friend or potential beneficiary can create a risk of undue influence. Concern is particularly common where an older or unwell person relies heavily on another person for day-to-day care or financial assistance.

If there is potential pressure, take instructions independently and privately. The person receiving a significant benefit should not direct the process, arrange every discussion or be present while instructions are given. Independent legal advice is a practical safeguard for both the will-maker and the people who may later rely on the document.

6. Sign and witness the will correctly

The formal signing process matters. Under NSW law, a will is generally valid when it is in writing, signed by the will-maker, and witnessed by at least two people who are present at the same time. The witnesses must then sign the will in the presence of the will-maker.

For a straightforward signing, follow these steps carefully:

• Have the final version of the will ready before anyone signs.
• Sign at the end of the will in the presence of two witnesses who are both there at the same time.
• Ask each witness to sign while you are present.
• Use adult witnesses who understand they are witnessing the signing of a will.
• Do not use a beneficiary, or the spouse of a beneficiary, as a witness if it can be avoided.

A gift to a witness, or to the witness’s spouse, may be ineffective even where the rest of the will is valid. There are limited exceptions, but relying on them can require court proceedings and add cost to the estate. Independent witnesses are the safer choice.

Each page should be kept together in its final form. Do not handwrite changes, remove pages or attach informal notes after signing. A change may be ineffective or raise questions about whether the will was altered after execution. The usual solution is to make a new will or a properly executed codicil.

7. Store the original and review it after major changes

The original signed will is the key document. Store it somewhere secure and tell your executor where it is held. A safe custody service, solicitor’s storage facility or secure home location may be appropriate. Avoid leaving the only original somewhere it may be damaged, lost or discarded without anyone knowing its importance.

Review your will after major life events, including marriage, divorce, separation, the birth or adoption of a child, buying or selling property, starting or selling a business, receiving an inheritance, or a significant change in family relationships. In NSW, marriage generally revokes an existing will unless a legal exception applies, including where the will was made in contemplation of that particular marriage. Divorce can also affect provisions in a will, but it does not necessarily produce the outcome you intended.

A new will should clearly revoke earlier wills. Simply assuming your latest document controls can be risky if it has not been signed correctly or if multiple versions are stored in different places.

When a DIY will may not be enough

A simple will may suit a person with modest assets, uncomplicated family arrangements and clear wishes. However, a professionally prepared will is strongly recommended where you own property, have a blended family, operate a business, have a self-managed super fund, expect a family provision claim, wish to exclude someone, or need to protect a vulnerable beneficiary.

NSW law allows the Supreme Court to recognise certain informal documents as wills in limited circumstances. That does not make an unsigned note, draft email or homemade document a reliable estate plan. Asking the court to determine whether an informal document should operate as a will can be expensive and distressing for those left behind.

A valid will is one part of a wider estate plan. Reviewing ownership structures, superannuation nominations, powers of attorney and appointments of enduring guardian can give your family clearer authority if you lose capacity and a clearer path when you die. For practical advice tailored to your circumstances, GKE Lawyers can help you prepare documents that reflect your wishes and meet NSW legal requirements.