This comprehensive guide covers all legal requirements for a valid will in Australia, including the testamentary capacity test, witnessing rules by state, signature requirements, and what can make your will invalid.
Quick Answer
For a will to be legally valid in Australia you must satisfy five essential requirements: being old enough, having testamentary capacity, putting your wishes in a written document, signing it, and having it properly witnessed. Missing any one can invalidate part or all of your will.
- Age: You must be 18 or older, unless you are married, contemplating marriage, or court-authorised.
- Capacity: You must pass the Banks v Goodfellow test, understanding the will, your property, and who may have claims on your estate.
- Written and signed: Your wishes must be in writing and signed by you at the end of the document.
- Witnessing: Two independent adult witnesses must watch you sign and sign in your presence and each other's; they cannot be beneficiaries or their spouses.
Summary: The Five Essential Requirements
For your will to be legally valid in Australia, you must satisfy all five essential requirements:
| Requirement | Summary | What Happens If Missing |
|---|---|---|
| 1. Age | 18+ years (or married/contemplating marriage) | Will is void |
| 2. Testamentary Capacity | Banks v Goodfellow four-limb test | Will challenged, potentially void |
| 3. Written Document | Demonstrates testamentary intent | Document may not be recognized as will |
| 4. Signature | Will-maker signs at end of document | Will is void |
| 5. Witnessing | Two independent adult witnesses sign | Will is void (or gifts void if witnesses are beneficiaries) |
1. Age Requirements
The Basic Rule
You must be at least 18 years old to make a valid will in Australia.
Exceptions
The following persons under 18 can make valid wills:
| Exception | Legislation Example | Requirements |
|---|---|---|
| Married persons | s.5 Succession Act 2006 (NSW) | Currently married |
| Contemplation of marriage | s.5 Succession Act 2006 (NSW) | Will states it's made in contemplation of specific marriage |
| Court authorization | s.16 Succession Act 2006 (NSW) | Court grants leave for minor to make will |
| ADF members | Various | Service members on active duty |
Note: If a person under 18 makes an unauthorized will, it is void regardless of whether it's properly witnessed.
2. Testamentary Capacity: The Banks v Goodfellow Test
Key point
Testamentary capacity is assessed at the time the will is made, not afterwards, so a will made while you had capacity stays valid even if you later lose it. For elderly or unwell will-makers, a doctor's capacity assessment on the day of signing is strong protection against a later challenge.
The Legal Standard
Australian courts apply the Banks v Goodfellow (1870) test to determine whether someone has testamentary capacity. This 150-year-old English case remains the leading authority in Australia.
The Four Limbs
To have testamentary capacity, you must satisfy all four of the following:
| Limb | Requirement | In Practice |
|---|---|---|
| 1. Nature of will | Understand you're making a will and its effect | Know the will disposes of your property after death |
| 2. Extent of property | Understand what property you have | General appreciation of assets, exact values not required |
| 3. Claims on estate | Comprehend who might have moral claims | Recognize spouse, children, dependents, not necessarily legal knowledge |
| 4. No disorder of mind | Free from mental disorder that vitiates judgment | No delusion or condition that specifically affects will's provisions |
Timing of Capacity
Testamentary capacity must exist at the time of making the will. This means:
- Capacity when giving instructions to a lawyer
- Capacity when reviewing the draft
- Capacity when signing the will
The "Golden Rule": For elderly or unwell testators, solicitors often obtain a medical opinion on capacity at or near the time of execution, this provides evidence if the will is later challenged.
Key Australian Cases on Capacity
Bull v Fulton [1942] HCA 13 The High Court confirmed that capacity is assessed at the time of execution. A will-maker who later loses capacity does not invalidate a will made when they had capacity.
Timbury v Coffee [1941] HCA 22 The court held that suspicious circumstances (such as a will favoring someone who procured its execution) require greater scrutiny of capacity.
Capacity is judged at the time of signing Courts have upheld wills made by people with early-stage dementia where medical evidence showed they had capacity at the specific moment of execution. A diagnosis on its own does not remove testamentary capacity.
Capacity Challenges
Wills are most commonly challenged on capacity grounds when:
- Will-maker had dementia diagnosis
- Will-maker was in hospital or care facility
- Will significantly changed from previous wills
- Will excludes close family members
- Will favors someone who "helped" make it
3. Written Document Requirements
Form of the Document
Your will must be in writing. This includes:
✅ Typed and printed ✅ Handwritten (holograph) ✅ Combination of typed and handwritten ✅ Electronic document (in some states with specific requirements)
Required Content
| Element | Status | Best Practice |
|---|---|---|
| Heading identifying as will | Recommended | "This is the last will and testament of..." |
| Revocation clause | Highly recommended | "I revoke all former wills and testamentary dispositions" |
| Appointment of executor | Recommended | Name primary and backup executors |
| Beneficiary provisions | Essential | Clear identification of who receives what |
| Residuary clause | Highly recommended | Catches any assets not specifically gifted |
| Date | Recommended | Helps determine which will is most recent |
| Attestation clause | Highly recommended | Confirms proper witnessing occurred |
What the Document Must Demonstrate
The document must show testamentary intent, that you intended it to be your will. Key indicators include:
- Title identifying document as a will
- Language of disposition ("I give, " "I bequeath, " "I leave")
- Provisions effective on death
- Appointment of someone to administer estate
4. Signature Requirements
The Basic Rule
You must sign your will at the end (foot or end) of the document.
How to Sign
| Method | Valid? | Requirements |
|---|---|---|
| Full signature | ✅ Yes | Your usual signature |
| Initials | ✅ Maybe | If intended as signature and you use initials generally |
| Mark (X) | ✅ Yes | If you can't write; witnessed and attested |
| Signature by another | ✅ Yes | At your direction, in your presence, with witnesses |
| Thumbprint | ✅ Maybe | Depends on jurisdiction; best combined with mark |
Signing by Another Person
If you're physically unable to sign, another person can sign on your behalf. Requirements:
- Person must sign in your presence
- Person must sign at your direction (you must direct them)
- Both witnesses must be present
- Attestation should state: "Signed by [person] at the direction and in the presence of [will-maker]"
Multiple Pages
For multi-page wills:
- Sign the final page at the end of the will content
- Initial each page (recommended but not legally required in most states)
- Pages should be bound together, avoid staple removal after signing
- Page numbers can help demonstrate completeness
5. Witnessing Requirements
Key point
If a beneficiary (or their spouse or de facto partner) witnesses your will, the gift to that beneficiary is void in NSW, QLD, TAS and several other states, though the rest of the will stays valid. This rule does not apply in Victoria or South Australia. Using two independent witnesses who receive nothing under the will avoids the problem in every state.
Core Requirements (All States)
| Requirement | Standard Rule |
|---|---|
| Number of witnesses | Two (2) |
| Witness age | 18 years or older |
| Witness capacity | Must understand they're witnessing a will |
| Beneficiary prohibition | Cannot be a beneficiary in the will |
| Spouse/de facto prohibition | Cannot be married to/de facto partner of beneficiary |
| Presence | Must be present when will-maker signs |
| Signing order | Witness signing after will-maker |
| Mutual presence | Witnesses sign in presence of will-maker AND each other |
The Witnessing Sequence
Correct Order:
- All three people gather in the same room
- Will-maker signs the will (or acknowledges previous signature)
- First witness signs in presence of will-maker and second witness
- Second witness signs in presence of will-maker and first witness
- Attestation clause completed (if not pre-printed)
Incorrect (Invalid):
❌ Witnesses signing before will-maker ❌ Will-maker signing alone, then having witnesses sign separately ❌ Witnesses signing without both being present ❌ Video witnessing without meeting state-specific requirements
Beneficiary as Witness: The Consequences
Under s.10 Succession Act 2006 (NSW), and equivalent provisions in QLD, TAS and several other states:
| Situation | Consequence |
|---|---|
| Beneficiary witnesses will | Gift to that beneficiary is VOID |
| Spouse of beneficiary witnesses | Gift to beneficiary spouse is VOID |
| De facto partner of beneficiary witnesses | Gift to beneficiary partner is VOID |
| Rest of will | Remains valid |
Key Point: The will doesn't become invalid, only the specific gift to the witnessing beneficiary fails. This does not apply in Victoria (Wills Act 1997 s11) or South Australia (Succession Act 2023 s13), where a beneficiary-witness keeps their gift.
State-by-State Witness Variations
| State | Remote Witnessing | Legislation |
|---|---|---|
| NSW | Yes (permanent) | Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation |
| VIC | Yes (permanent from 2024) | Justice Legislation Amendment Act 2024 |
| QLD | Yes (extended) | Justice and Other Legislation Amendment Act 2022 |
| SA | Limited | Check current provisions |
| WA | Limited | Traditional requirements generally apply |
| TAS | Limited | Wills Act 2008 |
| ACT | Yes | COVID-19 Emergency Response Legislation |
| NT | Limited | Wills Act 2000 |
Informal Wills: The Dispensing Power
What is an Informal Will?
An informal will is a document that doesn't meet formal execution requirements but may still be admitted to probate.
Dispensing Power Legislation
| State | Section | Test |
|---|---|---|
| NSW | s.8 Succession Act 2006 | Court satisfied document "embodies testamentary intentions" |
| VIC | s.9 Wills Act 1997 | Court satisfied person intended document to be their will |
| QLD | s.18 Succession Act 1981 | Court satisfied of testamentary intentions |
What Documents Have Been Admitted?
Courts have granted probate to:
- ✅ Unsigned draft wills
- ✅ iPhone videos (Re Yu [2013] QSC 322)
- ✅ Text messages
- ✅ Computer files
- ✅ Handwritten notes
- ✅ Letters to family members
What Has Been Rejected?
- ❌ Documents with ambiguous intent
- ❌ Drafts clearly intended as preliminary only
- ❌ Documents with inconsistent provisions
- ❌ Where deceased made subsequent formal will
Important Warning
Key Point: Relying on informal will provisions is never a good strategy. Courts require clear evidence of testamentary intent, and applications are expensive (typically $5,000-20,000 in legal fees). Always create a properly executed will.
What Makes a Will Invalid?
Grounds for Invalidity
| Ground | Effect | Can It Be Saved? |
|---|---|---|
| Lack of age | Wholly void | No |
| Lack of capacity | Wholly void (if proven) | No |
| Improper witnessing | Wholly void OR may be saved as informal will | Possibly |
| Beneficiary witness | Specific gift void, rest valid | Gift void unless court order |
| Undue influence | Wholly or partially void | No |
| Fraud/forgery | Wholly void | No |
| Revocation by marriage | Wholly revoked | Only if made in contemplation |
| Later valid will | Earlier will revoked | N/A |
Revocation by Marriage
In most Australian states, marriage automatically revokes a will unless:
- The will states it was made "in contemplation of marriage" to the specific person
- The will states it's not to be revoked by marriage
De facto relationships do NOT revoke wills automatically.
Frequently Challenged Will Scenarios
Scenario 1: The Hospital Will
Risk: Will made while in hospital, signed by nurses as witnesses. Challenges: Capacity questioned; nurses may be beneficiaries of hospital. Protection: Obtain capacity assessment from doctor; use independent witnesses.
Scenario 2: The Changed Will
Risk: Will significantly different from previous wills, especially if it excludes family. Challenges: Undue influence; lack of capacity. Protection: Document reasons for changes; obtain capacity evidence; have lawyer involvement.
Scenario 3: The DIY Will
Risk: Purchased will kit, no legal advice. Challenges: Witnessing errors; ambiguous language; missing provisions. Protection: Have lawyer review before signing; follow witnessing requirements exactly.
Checklist: Before You Sign
Use this checklist to ensure your will meets all requirements:
Will-Maker Checklist
- I am 18+ years old (or married)
- I understand what I own and who should receive it
- I am making this will freely (no pressure from anyone)
- The document clearly identifies itself as my will
- The document revokes my previous wills
- I have appointed executors (primary and backup)
- All my assets are covered (including residuary clause)
- The document is ready to sign
Witnessing Checklist
- Two witnesses ready (both 18+ years old)
- Neither witness is a beneficiary
- Neither witness is married to/de facto partner of a beneficiary
- All three of us are in the same room
- I will sign first, while both witnesses watch
- Each witness will sign while I watch and the other witness watches
- We will complete the attestation clause
Next Steps
A valid will requires attention to detail. Don't leave room for challenges, ensure every requirement is met.
Related Articles:
- Will Witnesses Requirements, Detailed witnessing guide
- How to Make a Will, Complete step-by-step guide
- Testamentary Capacity, In-depth capacity analysis
Ready to create your will? Get started with WillBuddy, our AI-guided platform ensures all legal requirements are met, with built-in error checking and state-specific compliance.
Legislation and Official Resources
Will-making in Australia is governed by each state and territory's own succession legislation. The core statutes include:
- New South Wales: Succession Act 2006 (NSW)
- Victoria: Wills Act 1997 (Vic)
- Queensland: Succession Act 1981 (Qld)
- South Australia: Succession Act 2023 (SA)
- Western Australia: Wills Act 1970 (WA)
- Tasmania: Wills Act 2008 (Tas)
- Australian Capital Territory: Wills Act 1968 (ACT)
- Northern Territory: Wills Act 2000 (NT)
Because requirements differ between states and are amended over time, always confirm the current rules for your state, or seek advice from a qualified legal professional.
Last updated: November 2025. This article provides general information about will requirements in Australia and does not constitute legal advice. For complex estates or potential challenges, consult a qualified solicitor.
Reviewed and current as at 12 June 2026.
This article is general information only and is not legal advice. Laws change over time and vary between Australian states and territories, so always confirm the current position and consider advice from a qualified legal professional for your specific circumstances.