The wording matters. So does the way it is signed.

A will is one of the few documents you sign and never see operate. The gifts, the appointments and the way it was executed are examined later, by people with an interest in the answer. That is why the formal requirements in the Succession Act 2006 (NSW) are strict.

What makes a will valid in New South Wales

Section 6 sets out the formal requirements. A will must be:

• in writing — typed or handwritten, but a document;
• signed by you, or by another person in your presence and at your direction;
• signed or acknowledged by you in the presence of two or more witnesses present at the same time; and
• attested and signed by at least two of those witnesses in your presence.

Section 5 requires you to be 18 or over, with limited exceptions, and you must have testamentary capacity: an understanding of what a will does, what you own, and who might expect to be provided for.

The words “present at the same time” do a lot of work. Signing in front of a neighbour on Tuesday and a colleague on Thursday does not satisfy s 6.

Who witnesses, and who should not

A witness does not need to read the will; they need to see you sign or acknowledge your signature, and a person who cannot see and attest that you signed cannot act as a witness. Under s 10 a beneficial disposition to an attesting witness is void, unless an exception applies — at least two other attesting witnesses take nothing, everyone who would benefit from the gift failing consents in writing, or the Court is satisfied you knew and approved of it. Use two independent adult witnesses who take nothing.

Choosing an executor

Your executor applies for the grant of probate, calls in the assets, pays the debts and any tax, and distributes the estate. It is administrative work over months, not an honorific. Choose someone over 18 who is organised, likely to outlive you, and willing — nobody can be compelled to accept the role.

• Appoint a substitute, in case your first choice dies or cannot act.
• Two executors must act jointly — a safeguard in some families, a deadlock in others.
• An executor who is not a beneficiary may witness the will and still act.

Guardianship of children

If you have children under 18, your will is where you record who you want to care for them, and a court can take that into account. It does not transfer parental responsibility by itself — a court making orders about a child must treat the child's best interests as paramount. Naming a guardian does not fund one: when the children take, and who holds the money, is a separate decision.

Specific gifts, and the residue

A will typically makes specific gifts, pecuniary legacies (a sum of money), and then disposes of the residue — everything else, after debts, tax and the specific gifts. The residue clause is the one that must not be forgotten: a will that gives away three items and stops leaves the rest of the estate to pass under the intestacy rules in Chapter 4 of the Act. If you no longer own a specific item at your death, that gift fails.

Superannuation does not pass under your will

This is the most common misunderstanding we see, and it is an expensive one. Your superannuation is held by a trustee, not by you, so it is not part of your estate and your will does not direct it. Unless you have done something about it, the fund's trustee decides who receives it.

A binding death benefit nomination takes that discretion away from the trustee and directs the benefit yourself. Many lapse after three years and quietly stop binding anyone; whether a non-lapsing nomination is available depends on the fund's own rules. A nomination made in your thirties and never revisited is one of the more common ways an estate plan fails without anyone noticing.

The alternative is to direct the superannuation death benefit to your legal personal representative, which brings it into the estate so your will can deal with it. Which is better depends on who your beneficiaries are and how they are taxed — a benefit paid to a non-dependant is taxed differently from one paid to a spouse.

When a document that is not a will still counts

A document that does not meet the signing requirements is not automatically worthless. The Succession Act 2006 (NSW) allows the Court to admit an informal will — a document the deceased intended to operate as their will — and applications have succeeded on unsent text messages, notes and unsigned drafts.

That is a rescue provision, not a plan. It costs money, it takes time, and it turns a private document into contested litigation between the people you were trying to provide for. It is the argument your family has instead of the will you meant to make.

Marriage and divorce

Two events operate on a will by force of the Act. Under s 12, marriage revokes a will, subject to exceptions including a will made in contemplation of that marriage. Under s 13, divorce revokes a gift to a former spouse and their appointment as executor, unless a contrary intention appears. See updating your will.

Signing, and where the original lives

We go through it with you before anything is signed, and have it witnessed by two people who take nothing under it. You receive a copy and a letter confirming the work is complete, and we will hold the original for safe keeping at no charge if you would like us to. Tell your executor where it is held.