It depends on what is written in the Will. If there is no Will, then intestacy rules apply. Two of the rules are as follows:
- If the deceased leaves a spouse but no children, the spouse is entitled to the whole of the estate.
- If the deceased leaves a spouse and children and the children are all also children of the spouse, the spouse is entitled to the whole of the estate.
At common law, the testator must:
- Be of sound mind, memory and understanding.
- Know and approve of the contents of their will.
- Intend the document to constitute their will.
- Not being acting under the undue influence of another.
- Not be acting as a result of fraud.
A will made by a minor is not valid unless the minor meets some special requirements in the Succession Act.
According to the Succession Act 2006 (NSW), a valid will must satisfy the following requirements:
- the testator must be over 18 years old and of full legal capacity and good state of mind;
- the will must be in writing;
- the testator must sign the will in the presence of at least two witnesses or direct someone to sign the will in the presence of at least two witnesses;
- the testator’s signature must be made or acknowledged in the presence of two or more witnesses, present at the same time;
- the two witnesses must attest and sign the will in the presence of the testator;
- the testator’s signature must be made with the intention of executing the will.