Making a will is one of the most important steps you can take to protect your family and ensure your wishes are carried out after you die. But a will is only legally effective if it meets specific formal requirements under NSW law. Understanding those requirements can mean the difference between your estate being distributed as you intended and your loved ones facing unnecessary uncertainty.

At Bateman Battersby Lawyers, we assist clients across Penrith and Western Sydney with estate planning every day. This article explains the key requirements for a valid will in NSW, and why it is worth getting professional help.

What Makes a Will Valid in NSW?

For a will to be legally valid in NSW, it must meet the following requirements:

• It must be in writing, whether typed or handwritten.
• The person making the will (the testator) must sign it, or direct someone else to sign it on their behalf, in their presence.
• The testator’s signature must be made or acknowledged in the presence of at least two witnesses, both of whom must be present at the same time.
• Both witnesses must then sign the will in the presence of the testator. They do not need to sign in each other’s presence, though it is best practice for them to do so.

These requirements exist to confirm that the document represents the testator’s genuine final wishes, and to guard against fraud or tampering.

Who Can Witness a Will?

Witnesses do not need any formal qualifications, but they must:

• be at least 18 years old; and
• not be beneficiaries under the will.

That second point is important. If your will leaves your estate to your two children, those children cannot also act as your witnesses. Doing so does not automatically invalidate the will, but it can create complications and may affect the gifts made to those individuals.

When Bateman Battersby drafts a will for a client, we arrange the witnesses ourselves. Typically, this is the lawyer who prepared the document and another member of our team.

Where Should the Testator Sign?

The testator’s signature can appear anywhere on the will. It does not have to be at the end, though signing at the end is the accepted convention. Best practice is for both the testator and the two witnesses to sign at the bottom of every page of the will.

Do You Need a Lawyer to Make a Will?

You are not legally required to engage a lawyer to prepare your will. However, will drafting is more technical than it may appear. A small error in wording or execution can lead to serious consequences, including assets passing to unintended beneficiaries. If you are not experienced in this area, the risks of a do-it-yourself approach are significant.

Estate Planning: More Than Just a Will

When we meet with clients to discuss estate planning, we also cover two other documents that are just as important for managing your affairs during your lifetime.

Power of Attorney

A power of attorney is a legal document in which a person (the principal) authorises another person (the attorney) to make legal and financial decisions on their behalf. It can apply for a specified period, or, if it is an enduring power of attorney, it can continue to operate even if the principal loses decision-making capacity.

Enduring Guardianship

An enduring guardianship is a formal appointment under NSW law. It authorises a trusted adult to make personal, health and lifestyle decisions on your behalf, but only if, and for as long as, you lack decision-making capacity. It does not extend to financial or property matters.

Like wills, both powers of attorney and enduring guardianship documents must meet their own formal requirements to be legally valid.

Get the Right Advice from the Start

Taking the time to put a proper will and estate plan in place is one of the most protective things you can do for yourself and your family. Having the right documents, correctly prepared and executed, gives you and your loved ones confidence and clarity.

If you would like to discuss your estate planning needs, contact our experienced team at Bateman Battersby Lawyers. We are here to guide you through every step.