The Importance of Having a Valid Will in New South Wales

SYC Legal
Aug 1
4 min read

Updated: Oct 31

In 2016, the world was shocked by the passing of musician Prince. Beyond the grief, his death highlighted a critical issue — he died intestate, meaning without a valid Will. Instead of closure, his estate became the subject of years of legal disputes.

Prince was not alone. Jimi Hendrix and Bob Marley also died intestate, and their families endured decades of costly and emotional legal battles. These examples serve as a reminder of one simple truth: without a valid Will, disputes are almost inevitable.

What Happens If You Die Without a Will?

In New South Wales (NSW), if a person dies without a valid Will (known as dying intestate), their estate is distributed according to the Succession Act 2006 (NSW). Generally, the estate passes first to the spouse. If there is no spouse, the law sets out a strict order of relatives who can inherit:

Children
Parents
Siblings (brothers and sisters)
Grandparents
Aunts and uncles
Cousins

If there are no eligible relatives, the estate is passed to the State (the Crown).

Matters can become more complex if the deceased was married but also had a de facto partner, or if there are children from multiple relationships. Importantly, intestacy laws only permit family members to inherit. Friends, charities, or other beneficiaries will not receive anything unless you leave a valid Will.

Why a Valid and Up-to-Date Will is Essential?

A well-drafted Will is one of the most important steps in estate planning. It provides certainty, minimises stress for your loved ones, and ensures your wishes are honoured. A valid Will:

appoints an executor to manage your estate;
provides clear instructions on how your assets should be distributed;
names the beneficiaries — individuals or organisations — who will inherit;
allows you to appoint a guardian for your minor children;
minimises disputes by clearly setting out your intentions;
streamlines estate administration, saving time and cost for your family.

When Should You Update Your Will?

A Will should never be a “set and forget” document. Major life events should prompt a review or update, such as:

Marriage, re-marriage, or entering into a new de facto relationship;
Separation or divorce;
Birth of children or grandchildren;
Buying or selling significant assets (such as property);
Starting or closing a business; or
Changes in your chosen executor or beneficiaries.

In NSW, marriage generally revokes a prior Will unless the Will was specifically made in contemplation of that marriage. Similarly, divorce or separation may affect the way your estate is distributed.

The birth of a child is also a critical time to update your Will, ensuring a guardian is nominated for your minor children. The case of Heath Ledger illustrates the risks of not updating a Will. Ledger did not update his Will after the birth of his daughter, Matilda. Fortunately, his family voluntarily gave up their entitlements to ensure she inherited — but not all families are so accommodating. Without that goodwill, legal proceedings would have been necessary.

The Legal Process of Estate Distribution

Understanding the legal process of estate distribution is crucial for anyone considering their estate planning. When a person dies intestate, the process can be lengthy and complicated. The appointed administrator must apply to the court for a grant of letters of administration. This document allows them to manage the deceased's estate.

Once the administrator is appointed, they must identify and value the deceased's assets and liabilities. This includes property, bank accounts, investments, and personal belongings. After settling any debts, the remaining assets are distributed according to the intestacy laws mentioned earlier.

This process can take months, or even years, depending on the complexity of the estate and any disputes that may arise among potential heirs. It is essential to have a valid Will to avoid these complications and ensure a smoother transition for your loved ones.

Common Misconceptions About Wills

There are several misconceptions surrounding Wills that can lead individuals to delay or avoid creating one. Here are a few common myths:

I don’t have enough assets to need a Will.
Many people believe that Wills are only for the wealthy. However, everyone has assets, whether they are financial or sentimental. A Will ensures that your wishes are respected.
Wills are only for older people.
Estate planning is important at any age. Unexpected events can happen, and having a Will in place provides peace of mind.
I can create a Will without legal assistance.
While it is possible to create a Will on your own, it is advisable to seek professional legal advice. A lawyer can ensure that your Will is valid and reflects your true intentions.
Once I create a Will, I don’t need to think about it again.
As discussed, life changes can necessitate updates to your Will. Regular reviews are essential to ensure it remains relevant.

The Benefits of Professional Legal Assistance

Engaging a legal professional to assist with your Will and estate planning offers numerous benefits. A lawyer can provide tailored advice based on your unique circumstances. They can help you navigate complex family dynamics, ensuring that your Will reflects your wishes accurately.

Additionally, a lawyer can assist with the drafting of your Will, ensuring that it complies with all legal requirements. This reduces the risk of challenges or disputes arising after your death. Furthermore, they can guide you through the entire estate planning process, including the establishment of trusts or other mechanisms to protect your assets.

Conclusion

Preparing and keeping a valid Will up to date is one of the most important steps you can take for your family. It ensures your wishes are carried out, minimises the risk of conflict, and provides peace of mind that your loved ones will be protected.

*The information in this article is for general guidance only and does not constitute legal advice. You should seek professional advice before relying on or acting upon this content.