Updated 28 October 2026
CM Law's Ultimate 50 List: Making a Will #48 - How do I ensure my will is compliant with state laws?
How do I ensure my will complies with NSW law?
A compliant NSW will requires more than a completed template. You must have the necessary capacity, understand and approve its contents, act freely and meet the applicable signing and witnessing requirements. Have a solicitor check the document, execution process and estate arrangements together, particularly where family circumstances or assets are complex.
The Succession Act 2006 contains the principal statutory rules. Clear drafting, correct execution and evidence of independent instructions address different risks; none should be treated as a substitute for the others.
A properly signed will can still face a dispute or family provision claim. Legal compliance reduces avoidable problems but cannot guarantee that nobody will challenge the estate.
What are the signing and witnessing requirements?
For an ordinary NSW will, section 6 requires writing, a signature intended to execute the will, and two witnesses present together when that signature is made or acknowledged. The witnesses must sign in the will-maker’s presence. Some recommended signing practices go beyond these minimum requirements and help reduce later evidentiary disputes.
The following distinguishes the legal formalities from sensible precautions for an ordinary in-person signing.
| Issue |
NSW legal position |
Practical safeguard |
| Writing |
The will must be in writing; handwriting and typed text can qualify. |
Use a complete, legible final document. |
| Will-maker’s signature |
Sign, or acknowledge the signature, with two witnesses present together. Another person may sign in your presence and at your direction. |
Have your solicitor arrange the signing, especially if someone must sign for you. |
| Witness signatures |
Both witnesses sign in your presence; they need not sign in each other’s presence. |
Complete all signatures together at one supervised appointment. |
| Position of signature |
Section 6 does not require the signature to be at the foot of the will. |
Follow the solicitor’s instructions about signing each page and the execution section. |
Who should witness my will?
Choose two suitable independent adults who can see and attest the signing, and who do not receive gifts under the will. A beneficiary who witnesses risks losing their gift under section 10, subject to statutory exceptions. That problem does not automatically invalidate the whole will, but can create avoidable proceedings.
A witness does not ordinarily need to be a solicitor or justice of the peace. However, having a solicitor supervise execution can help prevent mistakes with the sequence, signatures and document versions.
Use a planned signing appointment. Do not ask witnesses to add signatures later without following the required process, or assume that witnessing a different document at the same meeting completes the will’s requirements.
What capacity and understanding must I have?
Testamentary capacity concerns your ability to understand making a will, the general extent of your assets and the people whose claims you should consider. You must also know and approve the will’s contents and make it freely. Age or a diagnosis alone does not settle these questions; the circumstances require assessment.
Ordinarily, a will-maker must be at least 18, although marriage-related and court-authorised exceptions apply. An attorney under a power of attorney cannot simply make or rewrite your will for you; the court has separate powers concerning statutory wills.
Give instructions privately and directly to your solicitor. The Law Society’s guidance recommends detailed records of relevant questions and answers. Medical input may assist where concerns arise, but a generic certificate does not conclusively establish capacity or guarantee validity.
Can I use an online will or have it witnessed by video?
An online service may help prepare wording, but it does not automatically satisfy NSW execution requirements. Remote witnessing by audio-visual link is permitted under specific procedures. It requires live observation, matching documents and appropriate endorsements. Permission to witness remotely does not itself authorise electronic signatures or make a recorded signing sufficient.
Under the NSW remote-witnessing arrangements, witnesses must observe signing live, sign the document or appropriate counterpart, and add the required section 14G endorsement. The will-maker should also observe each witness signing live, as the Law Society explains.
Arrange the process with your solicitor and preserve every required signed page and endorsement. Do not assume a typed name, a recording or a standard online signing platform creates a formally valid will.
Can the court accept a will that was not signed correctly?
The Supreme Court can recognise some informal testamentary documents under section 8 of the Succession Act. It must be satisfied that the deceased intended the relevant document to form their will. This depends on evidence and is not automatic. A document expressing future wishes or proposed instructions may fail that test.
Section 8 can address failures of formal execution, but should not be used as an estate-planning strategy. Preserve the document and relevant communications and seek advice promptly if a defect is discovered.
If an informal document is not accepted, an earlier valid will may govern. Intestacy applies where no effective will disposes of the relevant estate; a defective later document does not invariably mean the entire estate passes on intestacy.
What does a real NSW case show about unsigned drafts?
In The Estate of Bradley Scott Lyons [2021] NSWSC 197, the Supreme Court refused to recognise an unsigned and unwitnessed draft as the deceased’s will. The evidence did not establish that he intended that document to operate before signing. The Court instead recognised his earlier executed will, subject to probate requirements.
The solicitor had emailed a document marked “Draft” on every page. The evidence showed that the deceased understood signing remained necessary. Proposed estate-planning arrangements did not establish the separate intention required for relief under section 8.
The Court ordered probate of the will dated 27 May 2016, subject to compliance with the probate rules. The case illustrates why giving instructions or receiving a draft does not necessarily complete the process.
It does not mean every unsigned document must fail. It demonstrates that reliance on informal-will provisions carries uncertainty and should not replace completing proper execution.
What if I marry, divorce or move interstate?
Marriage, divorce and changes of location should trigger a review of your will, but they do not all have the same legal effect. Marriage can revoke an earlier will, while divorce generally affects relevant gifts and appointments involving a former spouse. Moving interstate does not automatically invalidate a will.
Marriage rules include exceptions, such as wills made in contemplation of marriage. Divorce generally does not cancel the whole will, and contrary intentions or statutory exceptions may matter. Separation alone does not revoke it. Legal Aid NSW explains why these events warrant advice.
Section 48 can recognise formal execution under specified interstate or overseas laws. That does not guarantee every provision operates as intended in NSW. Tell your lawyer about foreign assets and wills so a broad revocation clause does not accidentally undo coordinated overseas planning.
What should my lawyer check before I sign and store the will?
Your lawyer should check that the will reflects your instructions, identifies beneficiaries clearly, deals with the remaining estate and provides suitable executor and substitute arrangements. They should also consider ownership structures, earlier wills and foreseeable changes. Once execution is complete, protect the original and tell your executor where it is held.
- Confirm names, gifts, substitute beneficiaries and what happens if an executor cannot act.
- Check superannuation nominations, joint ownership and company or trust interests separately; the will may not control those assets.
- Review after major family, financial or legal changes. Do not cross out gifts or attach replacement pages without advice.
- Keep the original securely and retain clear details of its location. A scan is useful but does not remove the importance of preserving the original.
NSW Government guidance recommends periodic review and review after significant events. For assistance with preparation, signing or an existing document, CM Lawyers’ wills and estates team can assess your circumstances. Arrange a legal review before relying on a template or unfinished draft.
General information about NSW wills and estates. Always have a lawyer check your will, signing arrangements and estate plan for your circumstances.
Key resources
