How Do You Write a Legally Valid Will in Australia?

Detailed Explanation

A will only does its job if it's actually valid. An invalid will is treated as if it doesn't exist, and the estate is then distributed under intestacy rules that may look nothing like what the person wanted. The formal requirements are deliberately simple to meet, but they're strict about form. See the End-of-Life Planning hub for how a will fits alongside your other planning-ahead documents.

What makes a will legally valid

Across Australian states and territories, a valid will generally requires:

• Capacity: the person making the will (the testator) is 18 or over (younger in limited court-approved circumstances) and understands what a will is, broadly what they own, and who might reasonably expect to benefit.
• Writing: the will is a written document (typed or handwritten); Australia does not generally recognise informal oral wills, though courts occasionally admit an informal or unsigned document as a will in exceptional circumstances.
• Signature: the testator signs the will, or directs someone to sign on their behalf in their presence.
• Witnessing: two adult witnesses, present together at the same time as the signing, also sign the document. Witnesses should not be beneficiaries, or married or in a de facto relationship with a beneficiary; doing so can void that person's gift even if the rest of the will stands.

The precise wording of these rules lives in each state's Wills Act, and small details (electronic execution during COVID-era temporary rules, remote witnessing by video link) have varied by state and by year. Check the current position with your state's Public Trustee or a solicitor rather than assuming a rule you've heard applies everywhere.

What a will should actually cover

Meeting the legal minimum isn't the same as writing a useful will. A thorough will typically names:

• An executor: the person responsible for administering the estate, plus a backup in case the first choice can't or won't act. A solicitor or trustee company can act as executor if no family member is suitable; see how do you plan ahead if you have no family or next of kin for that and the equivalent situation with an attorney or guardian.
• Guardians for any children under 18, if both parents were to die. See how do you choose a guardian for your children in your will for how to approach this specific decision.
• Specific gifts: particular items, amounts, or property left to named people.
• The residual estate: who receives everything left over once specific gifts and debts are settled; this clause matters even more than the specific gifts, since it's what actually resolves an unclear estate.

DIY kit, online service, or solicitor?

• Will kits and online will services work well for straightforward situations: one relationship, no business interests, biological children only, and a family unlikely to dispute the result. They're inexpensive and, if the signing formalities are followed exactly, legally valid.
• A solicitor is worth the fee once your situation has any complexity: a blended family, a business or trust structure, overseas assets, a beneficiary with a disability who may need a special disability trust, or any real chance of a family provision claim after your death. A solicitor also helps make sure the will actually achieves what you intend: a DIY will that's technically valid but ambiguously worded is a common source of expensive disputes during probate, including family provision claims from someone left with too little.

Storing it and keeping it current

A perfectly executed will helps no one if it can't be found. Store the signed original somewhere safe (with a solicitor, the Public Trustee, or a fireproof safe at home) and tell your executor exactly where it is. Review it after any major life event: marriage, divorce, a new child, a significant change in assets, or the death of an executor or major beneficiary.

A will is one piece of a broader set of end-of-life documents worth having together. Alongside it, many people also look at prepaid funeral plans to settle the financial side of a funeral in advance.

Common Mistakes

• Getting the witnessing wrong. An unwitnessed or incorrectly witnessed will can be entirely invalid, or a specific gift can fail even if the will as a whole survives.
• Using a beneficiary (or their spouse) as a witness. This can void that person's gift under the will, even though the will itself remains valid.
• Forgetting superannuation and life insurance. These commonly sit outside the will entirely (see the FAQ above) and need their own binding nomination, updated separately.
• Assuming a will controls a jointly owned property. If it's held as joint tenants, it passes automatically to the surviving owner regardless of what the will says. See what happens to jointly owned property or bank accounts when one owner dies if that's not the intended outcome.
• Not naming a backup executor. If the sole named executor has died or can't act, the court has to appoint a replacement, adding time and cost.
• Writing a DIY will for a complex situation. Blended families, business interests, and family members likely to contest the outcome are exactly the situations a template can't safely handle.
• Never updating it. A will written a decade ago, before a divorce, remarriage, or the birth of children, may no longer reflect, or may directly contradict, what you'd want now.
• Crossing out or handwriting a change directly onto the signed will. This doesn't work in any Australian state. See how do you update or change a will in Australia for the two ways to update one properly.

Things to Consider

• Marriage and divorce change things automatically. See the FAQ above: don't assume an old will still works after either event without checking.
• Capacity can be challenged. If there's any real prospect a will might be contested on capacity grounds (a late-life will, a recent diagnosis, family conflict), a solicitor arranging a contemporaneous medical capacity assessment is a genuinely worthwhile safeguard. This is one of the situations where professional advice is worth seeking specifically, not just as a reflexive suggestion.
• A will works alongside, not instead of, your other end-of-life documents. An advance care directive covers medical decisions while you're alive but unable to communicate, an enduring power of attorney covers financial and legal decisions during that same period, and a record of your funeral wishes covers what happens after you die. A will alone doesn't do any of those jobs.
• Digital assets need more than a clause. A will can authorise your executor to deal with online accounts, but it can't open them. The platform legacy settings and password succession covered in what happens to your digital accounts when you die do that part (and passwords should never be written into the will itself, which can become a public document).
• Costs are modest relative to the risk. A solicitor-prepared will for a straightforward estate is typically a low, one-off cost, inexpensive against the legal fees a poorly drafted will can generate if it's contested later.