Anyone over 18 years of age can make a will, and everyone should have one. A will made by a minor (a person under 18) is not valid unless it is made in contemplation of a marriage that takes place, the minor is married or the court has approved the will under section 16 of the Act (see later).
Capacity to make a will
People who make wills must have testamentary capacity. This means they must be of sound mind, memory and understanding at the time of making the will. A person is regarded as having the required capacity if they:
- know what a will is
- realise in general terms the amount and type of property they are disposing of
- are able to weigh the 'moral claims' that they should be considering when deciding who to leave property to.
A will-maker must also know and approve of the contents of their will.
People who are old or sick
A will can be challenged on the grounds that the will-maker did not have sufficient capacity. This arises most frequently when the will-maker is ill or extremely old when they make or change their will. If possible, you should make your will while you are still in good health. Do not put it off until you are very old or sick.
If the issue of capacity is likely to arise, you should obtain evidence of your testamentary capacity in the form of a medical certificate from your doctor or health worker.
People with intellectual disability
Testamentary capacity may also be an issue for people with an intellectual disability. While evidence of capacity is not legally required, it may be desirable in some cases where the disability is severe or if there is a likelihood that the will could later be challenged.
However, if it is clear that the person does not have the necessary capacity to make a will, sections 18 to 26 of the Succession Act 2006 now provide for court authorised wills for those lacking testamentary capacity. The court may, on the application of any person, authorise that a will may be made, altered or partially or fully revoked on behalf of a person lacking capacity either through immaturity (under 18) or a particular incapacity. The person on behalf of whom the application is made must be alive at the time the order is made. The will when executed must be deposited with the Registrar but a failure to do so will not invalidate the will.
Does a lawyer have to draft a will?
There are no formal requirements about who can draft a will. You can write one yourself. However, your will must be signed and witnessed formally, otherwise it may be considered invalid. In practice, most people use a lawyer, the NSW Trustee and Guardian (previously called the Public Trustee) or a private trustee company to draw up their wills. Unless your will is very simple, it is best not to write your own will. It is too late to correct a mistake after you have died.
There is no fixed fee for the preparation of a will. The price varies with the size of the organisation that draws it up and the complexity of the will. The Law Society of NSWrecommends that you approach two or three different lawyers about their rates before choosing one. The Society's Solicitor Referral Service can provide names of lawyers in your area who deal with wills and estates.
It is important to remember that, if your will is incorrectly worded, no-one may know until it is too late – after you have died. For the relatively low cost of having a will prepared professionally, you may save your estate a much higher cost: the legal fees if your will has to be interpreted or if it is contested.