Anyone over the age of 18, and anyone under 18 who is married or contemplating marriage, can make a will, provided they have testamentary capacity. Persons under the age of 18 who are unmarried can make a will with the approval of the Court; this can be advisable for young people who are earning large sums of money in modelling, in the entertainment industry, arising out of sports activities or from commercial endorsements.

The Court can also authorise a will to be made for a person lacking testamentary capacity under Part 2.2 of the Succession Act 2006 (NSW).

Without the authority of the client, a solicitor is not at liberty to provide the client’s attorney with access to the client’s will.

Where the client is incapable of providing that authority, an attorney has no legal right to access the original will or a copy, unless the client authorised the attorney to do so at a time when they had the requisite capacity to provide those instructions.

There is a view that a substitute decision maker, such as an attorney under an enduring power of attorney or a private financial manager, could not access the will of the protected person because the scope of the role of the attorney or financial manager was to deal with assets during the person's lifetime, with the will operating once the protected person died. In NSW, there is a statutory exception in that if a financial management order has been made, the NSW Trustee and Guardian or other appointed financial manager can access a copy of the will: NSW Trustee and Guardian Act 2009 (NSW) s 80.

Although there are legislative provisions in some Australian jurisdictions that provide for a copy of the will being made available to an attorney, there are no such provisions in New South Wales.

Under s 22 of the Powers of Attorney Act 2003 (NSW) a person who is named as a beneficiary of a specific item which is sold, mortgaged, charged or disposed of by a person as an attorney has the same interest in any surplus money or other property of the estate as if no sale, mortgage, charge, disposition or dealing had been made. It is therefore prudent to alert the attorney if they intend to deal with the principal’s property the subject of a specific gift in the principal’s will.

To avoid problems, it is recommended that at the time of making the power of attorney specific instructions be obtained as to whether or not the solicitor may provide the attorney with a copy of the principal’s latest will.

Available on the website here.

Access if the testator is alive

As a general rule, no person or entity has a right to access, receive a copy of, or know the contents of, another person’s will while the testator is alive. This is because the will (including its contents) is confidential to the testator.

This means that if a solicitor holds their testator client’s will, executors, guardians, spouses, children and other family members are not entitled to receive a copy of the will (or know the contents) unless the solicitor is authorised by the testator to release those details to them.

If the solicitor receives a request from any person or entity (including another law firm) for access to, a copy of, or any details regarding the will, the solicitor should contact the testator and seek their express instructions if they have mental capacity to provide them. Note that if the request is from a law firm, in many cases the request will be accompanied by an authority executed by the testator and a certified copy of the testator’s identification, and provided those documents are satisfactory, it would not be necessary to seek a further express instruction from the testator (noting Australian Solicitors Conduct Rules r 33 (the ‘no contact rule’) and r 14 (a client’s right to their documents)).

In cases where the testator is alive but lacks the mental capacity to provide instructions, a financial manager appointed pursuant to a Supreme Court or NSW Civil & Administrative Tribunal financial management order may, by notice in writing, require a person who has custody of the will of the managed person to give a copy of the will, certified in accordance with the regulations, to the financial manager within 14 days of the notice being given (NSW Trustee and Guardian Act 2009 (NSW) s 80(1)). Any person aged 18 years or older can certify a copy of a will is a true copy (NSW Trustee and Guardian Regulation 2017 (NSW) reg 46).

The position is different for a person acting as attorney pursuant to an enduring power of attorney. See the discussion under the FAQ “Should I provide a copy of my client’s will to their attorney?”.

Access if the testator is deceased

If a testator is no longer alive, the class of persons who can inspect or obtain a copy of the will is very broad.

Section 54(2) of the Succession Act 2006 (NSW) provides that a person who has possession or control of a will (defined in s 54(1) to include a revoked will, a document purporting to be a will, a part of a will and a copy of a will) of a deceased person must allow all of the following persons to inspect or be given copies of the will:

1. any person named or referred to in the will, whether as a beneficiary or not;
2. any person named or referred to in an earlier will as a beneficiary of the deceased person;
3. the surviving spouse, de facto partner or issue of the deceased person;
4. a parent or guardian of the deceased person;
5. any person who would be entitled to a share of the estate of the deceased person if the deceased person had died intestate;
6. any parent or guardian of a minor referred to in the will or who would be entitled to a share of the estate of the testator if the testator had died intestate;
7. any person (including a creditor) who has or may have a claim at law or in equity against the estate of the deceased person (this includes any person who is eligible to bring a family provision claim against the deceased’s estate pursuant to s 57 of the Succession Act 2006 (NSW));
8. any person committed with the management of the deceased person’s estate under the NSW Trustee and Guardian Act 2009 immediately before the death of the deceased person;
9. any attorney under an enduring power of attorney made by the deceased person; and
10. any person belonging to a class of persons prescribed by the regulations (noting that at the time of writing, no such regulations have been made).

Before providing a copy of a will to a person or entity, the solicitor should satisfy themselves that the testator is no longer alive. Proof of death may take the form of a certified copy of the deceased’s death certificate or a medical certificate stating the cause of death. In some circumstances, other reliable evidence may be sufficient to prove death.

A sole named executor is entitled to possession of the original will for the purpose of applying for a grant of probate. Where multiple executors are named in the will, each executor is entitled to a copy. However, all executors must (unless any have renounced probate) jointly authorise the person with custody of the original will to deliver up the original will.

If there are multiple executors and they do not agree as to who should hold the original will, it can be delivered to the Supreme Court Registry.

Many people who have testamentary capacity have granted an enduring power of attorney and that fact, of itself, should not cast doubt on the testamentary capacity of the intending testator. Depending upon the circumstances of the intending testator, such as whether he or she is in a nursing home, hospital etc, it would be wise first to check with the testator’s treating medical practitioner or hospital superintendent to ascertain whether the client is suffering from any form of dementia or has differing periods of lucidity. You should consult the Law Society guidelines here.

There is no public registry of wills in NSW, but a number of private providers offering will registration facilities are in operation. NSW Trustee & Guardian offers a secure storage service for wills, power of attorney and enduring guardianship documents called Will Safe. To find out whether NSW Trustee & Guardian holds the will of a deceased person, a member of the public can make a Deceased Will Enquiry.

The Registrar in Probate in the Supreme Court of NSW has a facility for lodgement of a will in the testator’s lifetime, although this is rarely used. In view of the ease of making a new will or codicil, will registration offers no certainty of proof of that document being the latest will. From 2002 until 28 March 2014 the NSW Registry of Birth Deaths and Marriages operated a Wills Register; however this service is no longer in operation.

The capacity to instruct underpins all solicitor-client relationships. A solicitor must not act if they are not reasonably satisfied that the client has the mental capacity to give instructions (see Goddard Elliot (a firm) v Fritsch [2012] VSC 87). The Law Society has issued detailed guidelines on how to manage such situations.

The guidelines can be viewed here.

If the Court is asked to exercise the dispensing power, it needs to be satisfied that the deceased intended the document purporting to contain testamentary intentions to form his or her will.  For clarity, consider using words along the following lines:

For a new will: “I intend this document to form my will”. 

For an alteration: “I intend this alteration to form an alteration to my will dated [insert date of will]”. 

For a codicil: “I intend this document to form a codicil to my will dated [insert date of will]”.

Part 2B of the Electronic Transactions Act 2000 (NSW), titled “Remote witnessing”, provides a mechanism to allow witnessing of certain documents by audio visual link (section 14G) when those documents would otherwise need to be witnessed in the physical presence of a signatory.

For further information, please refer to the guidance document ‘Implications of electronic witnessing provisions’.  

Yes, the operation of Part 2B of the Electronic Transactions Act 2000 (NSW) was extended by the Electronic Transactions Amendment (Remote Witnessing) Act 2021 (NSW) on 29 November 2021.

In many instances, a face-to-face meeting will still be the most appropriate way to arrange for many documents, such as wills, powers of attorney and appointments of enduring guardian, to be witnessed.

These provisions only apply to NSW.

Note: Remote witnessing of State-based statutory declarations is not subject to the provisions of Digital Identity that apply in relation to Commonwealth Statutory Declarations.

Not all jurisdictions around Australia allow for remote witnessing of documents, and for those that do, the requirements are not uniform. Overseas jurisdictions may or may not have laws regarding remote witnessing of documents. If it is possible that the laws of another jurisdiction may apply, practitioners must carefully consider whether remote witnessing is appropriate and in particular whether the document will be considered valid in all jurisdictions and for all purposes for which it may need to be used.

For further information, please refer to the guidance document ‘Implications of electronic witnessing provisions’.

Practitioners should refer to section 6 of the Succession Act 2006 (NSW) for guidance on the requirements for valid execution of a will.

Specifically, in order to meet the requirements of section 6(1)(c) of the Succession Act, the testator should also observe each witness signing the counterpart or copy document in real time.  If the will is signed in counterparts this can be done on the same audio visual link as the witnessing of the testator’s signature.  If one document is signed by the testator and then forwarded to the witnesses to sign, it will be necessary to re-establish an audio visual link with the testator at the time the witnesses sign.

For further information, please refer to the guidance document ‘Implications of electronic witnessing provisions’.

“Real time” is not defined in the Electronic Transactions Act 2000 (NSW). The Miriam-Webster dictionary defines “real time” to mean “the actual time during which something takes place”. Similarly, the Cambridge Dictionary defines it as “communicated, shown, presented, etc. at the same time as events actually happen”. This does not mean that the signatory and witness(es) of a will must be in the same time zone. However, a witness seeing a recording of the signatory signing will not be observing the signing in “real time”.

No, section 14I of the Electronic Transactions Act 2000 clarifies that a document may be witnessed via AVL even if the signatory, witness or both are outside the jurisdiction of NSW, if:

(a) the document is made, or required to be signed, under an Act or law in NSW, or

(b) the governing laws for the document are the laws in NSW.

For further information, please refer to of the guidance document ‘Implications of electronic witnessing provisions’.

The position with electronic signing hasn’t changed. If it was possible before the electronic witnessing provisions were introduced, it is still possible. However, the introduction of electronic witnessing does not change the position that some documents cannot be signed with an electronic signature. This means for example that electronic signatures are not possible for wills, enduring powers of attorney, enduring guardian appointments, affidavits, and statutory declarations (even though AVL witnessing is now possible for those documents).

For further information, please refer to of the guidance document ‘Implications of electronic witnessing provisions’.

Traditionally, a document is not “made” until all the formal requirements are completed. However, the Electronic Transactions Act 2000 (NSW) is silent as to when an electronically witnessed document is made.

In some circumstances, it may be possible to argue that a document was made when the signatory signs the document rather than when the execution is completed by the witness (or, with a will, witnesses) signing. This issue will be important if the signatory dies or becomes mentally incapacitated before the witness is able to sign (or, with a will, if there is an intervening marriage or divorce).

The issue that will arise is whether a will or other document is validly executed if there are these intervening events before the witness(es) sign.

As the Electronic Transactions Act 2000 remains silent on this point, and until there is a definitive decision of this issue, practitioners may wish to treat a will or document signed remotely as not being executed until a witness(es) has signed. This is an extra reason, when witnessing documents electronically, for having the signatory sign and the witness(es) sign contemporaneously (as opposed to subsequently) after the signatory signs the document.

For further information, please refer to the guidance document ‘Implications of electronic witnessing provisions’.

Section 14J(1) of the Electronic Transactions Act 2000 (NSW) provides that the document is made at the place where the signatory signed the document.

Section 14I of the Electronic Transactions Act 2000 provides that a document can be witnessed using the remote witnessing provisions of the Act even if either or both the signatory or witness(es) are outside of NSW, if the document is made or required to be signed under an Act or law of NSW, or the governing laws for the documents are the laws of NSW.

For further information, please refer to the guidance document ‘Implications of electronic witnessing provisions’.

If a client wishes to make a Will and the circumstances are urgent (for example, because of serious illness or imminent travel) it can be difficult to decline instructions.

It is, however, appropriate for a solicitor to decline to accept instructions from a client if, for example:

• you are not confident you have the experience or expertise to do the work required;
• you are unable to act promptly to do that work; or
• the testator is unable to provide you with clear and coherent instructions.

If you decide to decline the instructions, you should communicate that quickly so that the client has an opportunity to instruct another solicitor without further delay.

In urgent situations how do I assess testamentary capacity?

Wills made when the client is very ill are particularly susceptible to challenge on the grounds of lack of testamentary capacity.  To give the Will the best chance of withstanding such a challenge, there are some steps you can take:

• Obtain the Will instructions directly from the testator, who should be alone or with a qualified non-family member interpreter if required.
• Ask open-ended questions to test the client’s testamentary capacity.  The sample questions set out by Kunc J in Ryan v Dalton [2017] NSWSC 1007 at [107] are a good starting point:
  • Who are your family members?
  • What are your assets?
  • To whom do you want to leave your assets?
  • Why have you chosen to do it that way?

Record the questions and answers in a file note.

• If possible, find out whether any diagnosis, medication or behaviour may indicate there is a reason to be concerned about capacity.  Again, take file notes.
• If possible, obtain an opinion from the client’s doctor as to testamentary capacity, but where the situation is urgent do not delay in making the Will.

Because of the potential for construction issues with notes of instructions, this option is not ideal. However, if there is no time to draft a new Will or a codicil or an alteration to an existing Will, then having the client sign your notes of their Will instructions may be your only option. Read them through to the client. Consider whether to include a statement that any earlier Will is revoked. If there is no express revocation, a previous Will is only revoked to the extent that its provisions are inconsistent with the later signed notes. Use the words “I intend this document to form my Will”, and have the client sign as well as two witnesses, if available.

New Will

You will need to make a new Will if the client does not have a Will or if you do not have a copy of their current Will.  Even if you do have a copy of the current Will, if the changes to be made are extensive, a new Will may be the best option.

Altering an existing Will

If you have the client’s current Will, and the changes to be made are not extensive, one option is to make alterations to the existing Will.  For formal validity the alterations should comply with s 6 of the Succession Act 2006 (NSW) (“Succession Act”); they should be signed by the testator and attested by two witnesses.  If a second witness is not available, then have the alteration signed by the testator and one witness, in anticipation of an application under s 8 of the Succession Act.  A note should be made of the date on which the alterations are made.

Codicil

Another option, if you have the client’s current Will, is to make a codicil.  Take care to ensure that any codicil is drafted clearly, particularly with reference to the parts of the Will that are revoked and the parts that are confirmed, so that the Will and the codicil make sense when read together.  A codicil should be executed in the same way as a Will, but if there is only one witness an application may be made under the dispensing power provided by s 8 of the Succession Act.

If the Court is asked to exercise the dispensing power, it needs to be satisfied that the deceased intended the document purporting to contain testamentary intentions to form his or her Will.  For clarity, consider using words along the following lines:

For a new Will: “I intend this document to form my Will”. 

For an alteration: “I intend this alteration to form an alteration to my Will dated [insert date of Will]”. 

For a codicil: “I intend this document to form a codicil to my Will dated [insert date of Will]”.

No.

No. It must however be registered in the General Registry of Deeds before dealings affecting land, such as a Transfer, are signed.

Without the authority of the client, a solicitor is not at liberty to provide the client’s attorney with access to the client’s will.

Where the client is incapable of providing that authority, an attorney has no legal right to access the original will or a copy, unless the client authorised the attorney to do so at a time when they had the requisite capacity to provide those instructions.

There is a view that a substitute decision maker, such as an attorney under an enduring power of attorney or a private financial manager, could not access the will of the protected person because the scope of the role of the attorney or financial manager was to deal with assets during the person's lifetime, with the will operating once the protected person died. In NSW, there is a statutory exception in that if a financial management order has been made, the NSW Trustee and Guardian or other appointed financial manager can access a copy of the will: NSW Trustee and Guardian Act 2009 (NSW) s 80.

Although there are legislative provisions in some Australian jurisdictions that provide for a copy of the will being made available to an attorney, there are no such provisions in New South Wales.

Under s 22 of the Powers of Attorney Act 2003 (NSW) a person who is named as a beneficiary of a specific item which is sold, mortgaged, charged or disposed of by a person as an attorney has the same interest in any surplus money or other property of the estate as if no sale, mortgage, charge, disposition or dealing had been made. It is therefore prudent to alert the attorney if they intend to deal with the principal’s property the subject of a specific gift in the principal’s will.

To avoid problems, it is recommended that at the time of making the power of attorney specific instructions be obtained as to whether or not the solicitor may provide the attorney with a copy of the principal’s latest will.

Available on the website here.

An enduring power of attorney or enduring guardianship appointment document is the document of the client/principal. Therefore, the appointment document does not belong to the attorney or guardian. When a practitioner is considering whether the instrument may be released to the attorney or guardian, it is usually a matter of following the client’s instructions.

1. What, if any, instructions did the client give about releasing it to the appointee? Consider whether you should obtain these from clients when you are drafting these instruments.
2. Consider whether it is feasible or necessary to contact the client to seek instructions. If they are no longer your client, it may not be necessary to do so.
3. If you have no instructions to release the document, and the appointee is alleging the client no longer has capacity and that therefore the document is actionable, you should not release the document to the appointee without satisfactory medical evidence confirming the client has indeed lost capacity. It is up to the appointee to produce a medical report evidencing the client’s lack of capacity.