Q & A - Wills and Estate

Q: If my Wife or Husband passes away, do I get everything he owns?
A:

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:

  1. If the deceased leaves a spouse but no children, the spouse is entitled to the whole of the estate.
  2. 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.

Q: Who can make a will?
A:

At common law, the testator must:

  1. Be of sound mind, memory and understanding.
  2. Know and approve of the contents of their will.
  3. Intend the document to constitute their will.
  4. Not being acting under the undue influence of another.
  5. 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.


Q: What are the requirements for a valid will?
A:

According to the Succession Act 2006 (NSW), a valid will must satisfy the following requirements:

  1. the testator must be over 18 years old and of full legal capacity and good state of mind;
  2. the will must be in writing;
  3. 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;
  4. the testator’s signature must be made or acknowledged in the presence of two or more witnesses, present at the same time;
  5. the two witnesses must attest and sign the will in the presence of the testator;
  6. the testator’s signature must be made with the intention of executing the will.

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