If you’re planning a Will or already have one, making sure it meets every essential element of a valid Will in NSW could be the most important legal step you ever take. Your family’s security, your life’s work, and your final wishes all depend on whether your Will satisfies specific legal requirements under New South Wales’s Succession Act 2006. Get them right, and everything you’ve built goes exactly where you want it to go. Miss even one, and the consequences can be heartbreaking — and very costly.
We know that’s a lot to take in. But here’s the reassuring part: these five elements are entirely achievable with the right guidance. At Felicio Law Firm, helping NSW families protect what matters most is what we do every single day.
But first, a reality check. Research by NSW Trustee and Guardian in 2023 found that 60% of NSW residents do not have a valid or legal Will in place. On top of that, family provision claims in NSW — where someone challenges a Will or an estate — numbered 1,461 in 2024 (ABC, 16 Sep 2025). And with an estimated $3.5 trillion set to transfer between Australian generations over the next 20 years, the stakes have never been higher for every Australian family.
So let’s walk through what the law actually requires.
The Legal Framework: NSW’s Succession Act 2006
In New South Wales, wills are governed by the Succession Act 2006 (NSW) (the “Act”). This is the legislation that sets out every requirement a will must satisfy to be legally valid. It’s the rulebook, and the NSW Supreme Court enforces it strictly.
When a Will is declared invalid, it’s treated as though it never existed. In that situation, your estate may be distributed according to the intestacy rules — a rigid legal formula that has no regard for your actual wishes, your relationships, or your circumstances. That outcome is entirely avoidable. Here are 5 essential elements you need to know.
Element 1: The Testator Must Be of Legal Age
Under the Act, a person making the Will (i.e., the testator) must generally be at least 18 years of age.
However, there are limited exceptions.
Under section 16 of the Act, a person under 18 (a “minor”) can make a formally valid Will with Supreme Court authorisation. However, the Court will only approve if it is satisfied the minor understands that:
- the Will’s nature and property disposed;
- it reflects their true intentions; and
- the authorisation is reasonable in all circumstances.
Element 2: The Testator Must Have Testamentary Capacity
The testator must have testamentary capacity, or the mental ability to understand what they are doing, why they are doing it, and what effect it will have.
The legal test for testamentary capacity in Australian courts still comes from the landmark English case Banks v Goodfellow (1870), which NSW courts have consistently applied and affirmed.
Under this test, the testator must:
- understand what a Will is and what it does;
- have a reasonable understanding of the property they own and are giving away;
- know who might reasonably expect to benefit — for example, a spouse, children, or other dependants; and
- not be suffering from any disorder of the mind that distorts their judgment in a way that affects how they make the Will.
This is not an all-or-nothing test. A person with dementia or a psychiatric condition may still have capacity, depending on the nature and extent of their condition and the simplicity of the Will. Courts assess capacity at the time the Will is signed — or, if instructions were given earlier, at the time those instructions were provided.
Why does this element generate so much litigation? Because it is often raised after someone has died and can no longer speak for themselves. The evidence is retrospective — medical records, solicitor file notes, testimony from family and carers. When capacity is successfully challenged, the Will is void. That is why experienced estate planning solicitors document their assessment of a testator’s capacity carefully, and why a medical assessment is sometimes recommended.
We understand this is a sensitive area, especially when a parent or loved one’s health is declining. At Felicio Law Firm, we approach these situations with genuine compassion and care.
Element 3: The Will Must Be Made Freely and Voluntarily
A Will must be the genuine expression of the testator’s own wishes — made without undue influence, coercion, or fraud from any other person.
This doesn’t mean families can’t talk, suggest, or express preferences. Of course they can. Life is full of those conversations. What the law prohibits is pressure so overbearing that it substitutes someone else’s decision for the testator’s own. NSW courts draw a clear line between legitimate persuasion and coercion that overrides the testator’s independent judgment.
Undue influence tends to surface in situations where a vulnerable or elderly testator is heavily dependent on a carer who also stands to benefit, or where a Will is dramatically changed shortly before death without obvious reason. It also arises where the testator has been isolated from family and other trusted people.
But proving undue influence is notoriously difficult. The burden falls on the person challenging the Will, and the courts require solid evidence. But when it is proven, the affected gift — or the entire Will — can be set aside.
Fraudulent misrepresentation is a close cousin. If someone feeds false information to a testator — for example, telling them that a child has abandoned them when they haven’t — and the testator changes their will as a result, the courts can strike out that part of the Will. The testator’s true wishes deserve protection, and NSW law provides it.
Element 4: The Will Must Be in Writing and Properly Executed
This is the element that trips up the most homemade or Will kits. It is also the one where small mistakes can have enormous consequences.
Section 6 of the Succession Act 2006 (NSW) sets out clear formal requirements. For a will to be validly executed:
- it must be in writing — handwritten, typed, or printed;
- it must be signed by the testator, or by someone else in the testator’s presence and at their direction if the testator cannot physically sign;
- the signature must be made or acknowledged by the testator in the simultaneous presence of at least two witnesses; and
- both witnesses must sign the Will in the testator’s presence.
Every single step is mandatory. Courts have seen Wills fail because one witness stepped out of the room before the testator finished signing. Others have been challenged because the testator and witnesses signed on different days. These are not technicalities — they are the guardrails that prevent fraud and ensure the document is authentic.
One point deserves particular attention.
Under Section 10 of the Act, a gift to a witness — or to any person claiming under a witness — is generally void, even if the rest of the Will remains valid. However, this rule does not apply where at least two other witnesses are not beneficiaries, where all persons who would benefit from the avoidance of the gift consent in writing, or where the Court is satisfied the gift was made freely and with the testator’s knowledge and approval.
This is why witnesses should always be independent adults who receive nothing under the Will.
Element 5: The Will Must Reflect a Genuine Testamentary Intention
The fifth element is perhaps the most fundamental: the document must actually be intended to operate as a Will.
This means the testator must genuinely intend, at the time of making the document, that it will take effect as the legal disposal of their property upon their death. A letter written to a family member, a note in a diary, or a text message might express wishes — but they are not automatically a Will. Whether they qualify depends entirely on intent, and that question can only be resolved by a court.
Beyond intention, a well-drafted will needs certainty. Beneficiaries must be identifiable. Gifts must be described clearly enough to be administered. And while appointing an executor is not strictly a requirement for validity under the Act, having no executor creates real and entirely avoidable practical problems.
Vague language is a gift to litigators. When a Will says “to my children equally” but the testator had children from two different relationships — and only meant one set — the courts must interpret the Will. When “my house” refers to one of several properties, the ambiguity must be resolved. These disputes are costly, slow, and damaging to family relationships. Precise drafting, guided by an experienced Estate Planning Lawyer, prevents them before they begin.
What Happens if a Will is Invalid?
If a Will fails to satisfy any one of these five elements and is declared invalid, NSW’s intestacy rules under the Act apply. The estate is distributed according to a fixed legal formula, one that has nothing to do with your actual wishes.
The formula prioritises a surviving spouse or de facto partner, then children, then more distant relatives in a set order. If the deceased had children from a prior relationship, the distribution can become complicated and contested.
A de facto partner is only recognised under the intestacy rules if the relationship lasted at least two years or produced a child. A partner who does not meet this threshold receives nothing at all under the intestacy rules, regardless of how committed or long-standing the relationship appeared to be.
Also, friends, charities, and others you may have wanted to provide for receive nothing.
That’s why a valid Will, professionally prepared and kept up to date, is one of the most important things you can do for the people you love.
Protect Your Legacy
You have worked hard to build your life in NSW. Whether it’s your home, your business, your savings, or the relationship you want to protect — a valid Will is the foundation of all of it.
At Felicio Law Firm, our friendly team have been fostering relationships for a lifetime, providing compassionate, professional, and dedicated legal solutions to individuals, families, and small businesses across NSW. We offer high-value, personalised service that puts you first, and we take the time to get your estate planning right.
We can help you with your Will, powers of attorney, enduring guardian appointments, and a complete estate plan tailored to your circumstances. Expert legal solutions don’t have to be complicated or out of reach.
If you’re thinking about making or updating your Will, or if you’ve been putting it off because life got busy, please don’t wait any longer. Your family deserves that peace of mind.
