Who can make a will?


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 of18 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 show business or arising out of their 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.

Is it better to make a new will, alter an existing will, or make a codicil?

Making a 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 section 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 section 8 of the Succession Act.  A note should be made of the date on which the alterations are made.

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 section 8 of the Succession Act.


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