Costs, State Rules and 2026 Checks
What makes a will valid in Australia, and when an informal will can still count
Will formalities in NSW, Victoria, Queensland and WA, how the courts' dispensing power saves informal wills, and how marriage and divorce change a will.
In every Australian state a formal will must be in writing, signed by the will-maker (or by someone else at their direction and in their presence), and the signature must be made or acknowledged in front of two witnesses who are present at the same time and who then sign. If a document does not meet those rules, it can still take effect as a will if the Supreme Court is satisfied the person intended it to be their will: this is the dispensing power, for example section 8 of the Succession Act 2006 (NSW) and section 18 of the Succession Act 1981 (Qld). The dispensing power rescues many informal wills, but only after a court application that costs time and money.
This guide is general information. If an estate depends on an informal document, get legal advice before applying for a grant.
The formal requirements, state by state
| State | Main Act | Formal requirements (summary) | Dispensing power |
|---|---|---|---|
| NSW | Succession Act 2006 | Writing, signature, two witnesses present at the same time (s 6) | s 8 |
| Victoria | Wills Act 1997 | Writing, signature, two witnesses present at the same time (s 7) | s 9 |
| Queensland | Succession Act 1981 | Writing, signature, two or more witnesses present at the same time; witnesses need not know it is a will (s 10) | s 18 |
| WA | Wills Act 1970 | Writing, signature, two witnesses present at the same time (s 8) | s 32 |
| SA, Tas, ACT, NT | Each has its own Wills or Succession Act | Same core rules | Each has a dispensing power |
Points that are the same almost everywhere:
- Age: you must generally be 18. A minor may make a will if married or with the court's authorisation (Queensland s 19, for example).
- Capacity: you must understand that you are making a will, know roughly what you own, and know who might expect to benefit. A will made after capacity is lost is open to challenge.
- Witnesses: they must be able to see the will-maker sign. Queensland's Act says expressly that a person who cannot see and attest the signature cannot be a witness.
- Attestation clause: not legally required, but it makes the grant easier because the registry can see the will was properly signed.
Beneficiaries as witnesses
Do not let a beneficiary, or a beneficiary's spouse or partner, witness your will. The rules differ by state, but in general a gift to an interested witness is at risk. In Queensland, for example, the gift is void unless at least two other witnesses were not interested, all the people who would gain consent in writing, or the court is satisfied the will-maker knew and approved of it (s 11). Saving the gift may require evidence and a court order, which is a cost the estate did not need.
Remote witnessing
During 2020 most states allowed wills to be witnessed by audio-visual link as a temporary measure, and some made versions of that permanent. Rules differ on who must be present, how copies are signed and what the witness must certify. Because the details have changed several times, check your state's current legislation before relying on remote witnessing, and keep a record of how the will was signed.
Informal wills: how the dispensing power works
The court asks three practical questions:
- Is there a document? Courts have accepted unsigned typed drafts, handwritten notes, and documents stored electronically, including on a phone.
- Does it set out the person's testamentary intentions, meaning what should happen to their property on death?
- Did the person intend that document itself to operate as their will, without anything more? A draft sent to a solicitor with a request to "prepare the will" often fails this test, because the person expected a formal will to follow.
The court can look at evidence about how the document was made and what the person said about it. That evidence usually comes from affidavits by family members, friends or professionals.
What an informal will costs
There is no separate statutory fee for relying on the dispensing power, but the grant application becomes a contested or at least complex matter. Costs depend on whether anyone opposes it. Illustrative only: an unopposed application with a few affidavits might add several thousand dollars in legal costs to a normal grant; an opposed one can cost far more, and the court decides who pays. A properly signed formal will avoids the issue.
How marriage, divorce and separation affect a will
| Event | General effect (most states) | Check |
|---|---|---|
| Marriage | Revokes an earlier will, unless the will was made in contemplation of that marriage, or the gift is to the new spouse | Your state's Wills or Succession Act; exceptions differ |
| Divorce (divorce order takes effect) | Revokes gifts to the former spouse and their appointment as executor, unless the will shows a contrary intention | Some states treat the end of a de facto relationship similarly |
| Separation without divorce | No automatic effect: the separated spouse can still inherit and act as executor | Update the will promptly |
| Entering a de facto relationship | Does not revoke a will | The new partner may have a family provision claim |
Because a separated but not divorced spouse stays in the will, the period between separation and divorce is one of the riskiest for an estate plan. See estate and family-law mistakes.
Statutory wills for people without capacity
If a person has lost testamentary capacity, the Supreme Court can authorise a will to be made for them (in NSW under s 18 of the Succession Act 2006). Applications are usually made by family members or an attorney when an old will no longer reflects the person's circumstances. They need medical evidence and a proposed will, and are costly, so they are not a substitute for planning while capacity remains.
Where to keep the original
The original will is needed for the grant. Copies usually are not accepted without a court application. You can lodge a will for safe keeping with a solicitor, a public trustee, or in NSW and Victoria with the Supreme Court registry (the NSW fee for depositing a will is $169 and the Victorian fee is $27.60 in 2026–27). Tell your executor where it is.
FAQ
Can I write my own will without a lawyer?
Yes. A will does not have to be prepared by a lawyer to be valid; it must meet the formal requirements. The risks are unclear wording, gifts that fail, missing a residuary clause, and forgetting assets that pass outside the will. See homemade will failure cases.
Is a video or a text message a valid will?
It is not a formal will, but courts have accepted electronic documents and notes on phones under the dispensing power where the evidence showed the person intended them to be their will. It is never certain and always needs a court application.
Does my will made in another state still work if I move?
A will validly made in one Australian state is generally recognised in the others. But powers of attorney and some gifts may need checking, and it is sensible to review the will after a move.
Can a will be changed by writing on it?
Alterations made after signing need to be signed and witnessed in the same way, usually in the margin. Unwitnessed handwritten changes may be ignored unless the court accepts them under the dispensing power.
Sources
- NSW Legislation — Succession Act 2006, ss 6, 8 and 18
- Victorian Legislation — Wills Act 1997, ss 7 and 9
- Queensland Legislation — Succession Act 1981, ss 10, 11, 18 and 19
- WA Legislation — Wills Act 1970
- Supreme Court of NSW — depositing a will and applying for a grant
- Related: overview of costs and documents, intestacy by state, family provision claims
