Wills and estate planning in New South Wales
A plain-English guide to making a will, appointing an attorney and an enduring guardian, and planning your estate in New South Wales under the Succession Act 2006 (NSW).
Checked against official sources on 8 Nov 2026. General information, not legal advice. No lawyer or solicitor has reviewed this page.
Overview
In New South Wales, wills are governed by the Succession Act 2006 (NSW). It sets out how a will must be signed and witnessed, when the Supreme Court can accept a document that was not signed properly, what happens when you marry or divorce, and who inherits when there is no will at all. Powers of attorney sit in a separate Act, the Powers of Attorney Act 2003 (NSW), and health and lifestyle decisions are covered by an appointment of enduring guardian under the Guardianship Act 1987 (NSW).
A complete estate plan in NSW usually means four things: a will, an enduring power of attorney, an appointment of enduring guardian, and an up-to-date superannuation death benefit nomination. The first three are NSW documents. The fourth is governed by Commonwealth superannuation law and by your fund's rules, and it is the one that most often undoes an otherwise sound plan, because superannuation does not automatically form part of your estate.
Since the Electronic Transactions Amendment (Remote Witnessing) Act 2021 (NSW), remote witnessing by audio visual link under Part 2B of the Electronic Transactions Act 2000 (NSW) is permanent, so the signing of a will can be witnessed over a video link if the steps in section 14G are followed exactly. The remote witnessing rules do not themselves allow a will to be signed electronically. This page is general information about NSW law, not legal advice about your situation.
Who this is for
- You live in NSW and have never made a will
- You are marrying or divorcing and want to know what happens to your existing NSW will
- You have separated but not divorced and your old will still benefits your ex-partner
- You want to appoint someone to manage your money if you lose capacity
- You want to record who makes your medical and accommodation decisions
- You are worried a family member will make a family provision claim against your estate
- You want to leave an inheritance in a testamentary trust rather than outright
- A relative has lost capacity and their existing will produces an unfair result
- You made a will in another state and have since moved to NSW
LegislationShowHide
- Succession Act 2006 (NSW) (NSW)
The main Act. Chapter 2 deals with making, executing, altering, revoking and reviving wills, court authorised wills for minors and people without capacity, and deposit of wills with the Registrar. Chapter 3 covers family provision claims and Chapter 4 covers intestacy. The current version has applied since 14 July 2023.
- Powers of Attorney Act 2003 (NSW) (NSW)
Governs general and enduring powers of attorney for financial and property matters. Section 19 sets out how an enduring power of attorney is created, including witnessing by a prescribed witness, and section 20 provides that the power confers no authority until the attorney accepts the appointment by signing the instrument. Section 52 requires registration before a deed affecting land signed under a power of attorney has effect.
- Guardianship Act 1987 (NSW) (NSW)
Part 2 lets you appoint an enduring guardian to make health, accommodation and personal decisions if you lose capacity. Since 1 September 2026 the prescribed form for the appointment is set by the Guardianship Regulation 2026 (NSW). The Act also lets NCAT review those appointments and make guardianship orders (Part 3) and financial management orders (Part 3A), and it establishes the Public Guardian (Part 7).
- Probate and Administration Act 1898 (NSW) (NSW)
Deals with grants of probate and letters of administration and the powers and duties of executors and administrators. Section 92 protects an executor or administrator who distributes the estate at least six months after the death and after giving notice of intended distribution.
- Electronic Transactions Act 2000 (NSW) (NSW)
Part 2B, particularly sections 14F and 14G, permanently allows the signing of a will, power of attorney or appointment of enduring guardian to be witnessed by audio visual link if the witness sees the signing in real time, signs the document or a copy of it, and endorses it with a statement of the method used.
- NSW Trustee and Guardian Act 2009 (NSW) (NSW)
Establishes NSW Trustee and Guardian, which may prepare wills, act as executor, administrator and trustee, and manage the estates of people who cannot manage their own affairs. The Public Guardian is a separate office set up under the Guardianship Act 1987 (NSW).
- Superannuation Industry (Supervision) Act 1993 (Cth) (CTH)
Commonwealth law governing superannuation, including death benefits. It applies in NSW and, with the Superannuation Industry (Supervision) Regulations 1994 (Cth), limits who a fund can pay a death benefit to and sets the rules for binding death benefit nominations (regulation 6.17A).
Courts and tribunalsShowHide
- Supreme Court of New South Wales, Probate and Family Provision List
Grants probate and letters of administration, and hears applications to admit informal wills under the dispensing power in section 8, statutory will applications, family provision claims and disputes about whether a will is valid. Contested matters are managed in the Probate and Family Provision List. The Registrar also accepts wills for safe keeping during the will-maker's lifetime, for a fee.
- NSW Civil and Administrative Tribunal, Guardianship Division
Makes guardianship and financial management orders for adults with a decision-making disability when informal arrangements or enduring appointments are not working, reviews enduring guardianship appointments and enduring powers of attorney, and can appoint the Public Guardian as guardian or NSW Trustee & Guardian as financial manager.
- NSW Trustee & Guardian
The NSW Government trustee. Prepares wills, powers of attorney and enduring guardianship appointments, offers paid WillSafe document storage, acts as executor and trustee of deceased estates, and acts as financial manager when appointed. Its website also covers the Public Guardian.
- NSW Land Registry Services
Registers powers of attorney in the General Register of Deeds. A deed or dealing affecting land signed under a power of attorney has no effect unless the power is registered. Also registers transmission applications and notices of death for land held by a person who has died.
ProcessShowHide
01Work out what you own and how you own it
List real property and how it is held, bank accounts, shares, superannuation and insurance inside super, business and trust interests, and anything overseas. Only assets in your sole name, and your share of assets held as tenants in common, pass under your will.
Typical timeframe: 1-2 weeks
02Choose your executor, beneficiaries and structure
Decide who administers the estate, who inherits, what happens if a beneficiary dies before you, and whether any share should be held in a testamentary trust. Consider who might bring a family provision claim under Chapter 3 of the Succession Act 2006 (NSW).
Typical timeframe: 1-2 weeks
03Draft the will and the planning documents
Prepare the will together with an enduring power of attorney under the Powers of Attorney Act 2003 (NSW) and an appointment of enduring guardian under the Guardianship Act 1987 (NSW), so financial and personal decisions are both covered.
Typical timeframe: 1-3 weeks
04Sign and witness the will
Sign the will, or acknowledge your signature, in front of two or more witnesses who are present at the same time, then have at least two of them sign in your presence. Use witnesses who are not beneficiaries, because a gift to a witness can be void unless an exception in section 10 of the Succession Act applies. If witnessing by video link, follow section 14G of the Electronic Transactions Act 2000 (NSW) precisely.
Typical timeframe: 1 day
05Sign and register the power of attorney where needed
An enduring power of attorney must be witnessed by a prescribed witness who certifies that they explained its effect, and the attorney must sign an acceptance before the power confers any authority. An appointment of enduring guardian must be in the form prescribed by the Guardianship Regulation 2026 (NSW), witnessed by an eligible witness and endorsed with the guardian's acceptance. Register the power of attorney with NSW Land Registry Services if the attorney will deal with land.
Typical timeframe: 1-4 weeks
06Update your superannuation nomination
Check what nomination your fund allows and lodge a fresh one. A lapsing binding nomination expires three years after it was first signed or last confirmed or amended, unless you renew it. Some funds offer non-lapsing binding nominations, which do not expire.
Typical timeframe: 2-6 weeks
07Store the original and tell your executor
Keep the signed original safe: with your solicitor, in NSW Trustee & Guardian's WillSafe storage (a fee applies unless it is your executor or attorney), in bank safe custody, or deposited with the Supreme Court Registrar for a fee. Tell your executor where it is and keep a copy at home.
Typical timeframe: 1 week
08Review after life changes
Revisit the plan after marriage, divorce, separation, a birth, a death, a property purchase or a business change. NSW Trustee & Guardian suggests reviewing your will every five years, as well as after any major life change.
Typical timeframe: Every 5 years
Parties
Testator
The person making the will. Must generally be 18 or over (a minor can make a will in contemplation of marriage, while married, or with the Supreme Court's authorisation) and must have testamentary capacity when the will is signed.
Executor
Applies to the Supreme Court of NSW for probate, gathers the assets, pays debts and tax, and distributes the estate under the will.
Witness
At least two witnesses who are present at the same time when the testator signs or acknowledges the signature. The Act sets no minimum age, but adults are the safe choice, and a person who cannot see cannot act as a witness. A gift to a witness can be void unless an exception in section 10 applies.
Attorney
The person appointed under an enduring power of attorney to make financial and property decisions. Has no authority until they accept the appointment by signing the instrument.
Enduring guardian
The person appointed under the Guardianship Act 1987 (NSW) to make health, accommodation and personal decisions when the appointor cannot. The appointment must be endorsed with their acceptance.
Prescribed or eligible witness
An enduring power of attorney must be witnessed by a prescribed witness, such as an Australian legal practitioner, a registrar of the Local Court, or a licensed conveyancer or NSW Trustee & Guardian employee who has completed an approved course, who certifies that they explained the document. An appointment of enduring guardian must be witnessed by an eligible witness: an Australian legal practitioner, a registrar of the Local Court, a lawyer qualified in another country, or a NSW Trustee & Guardian staff member who has completed an approved course and been approved for the role. The witness certifies that the person signed voluntarily and appeared to understand it.
Beneficiary
A person, charity or trust receiving a gift under the will.
Eligible person
Someone entitled to bring a family provision claim under Chapter 3 of the Succession Act 2006 (NSW): a spouse or de facto partner at the time of death, a child, a former spouse, certain dependants who were grandchildren or members of the household, and a person in a close personal relationship with the deceased at death.
Time limits
These are general time limits described in prose. This page does not calculate a deadline for your matter.
Revocation of a will by marriage
Marriage revokes an existing will, except a will made in contemplation of that marriage or expressed to be made in contemplation of marriage generally. A gift to, or appointment as executor, trustee, advisory trustee or guardian of, the person you are married to when you die is not revoked.
Source: s 12 Succession Act 2006 (NSW)
Effect of divorce or annulment
A divorce or annulment revokes gifts to the former spouse and their appointment as executor, trustee, advisory trustee or guardian, unless the will shows a contrary intention. An appointment of the former spouse as trustee of property left on trust for beneficiaries that include the former spouse's children is not revoked. The rest of the will continues to operate.
Source: s 13 Succession Act 2006 (NSW)
Survivorship by beneficiaries
A beneficiary must survive the testator by 30 days for the gift to take effect, unless the will sets a different period or shows a contrary intention.
Source: s 35 Succession Act 2006 (NSW)
Family provision claim
An application must be filed within 12 months after the date of death, unless the Court allows a later application for sufficient cause or the parties consent.
Source: s 58(2) Succession Act 2006 (NSW)
Applying for probate, including of an informal will
Section 8 sets no time limit for asking the Court to accept an informal will, but if a probate application is filed more than 6 months after the death, the applicant must explain the delay to the Court.
Source: s 8 Succession Act 2006 (NSW); Supreme Court Rules 1970 Pt 78 r 16, as described by the Supreme Court of NSW
Leave for a statutory will
A person must obtain the leave of the Supreme Court before applying for an order authorising a will for someone who lacks testamentary capacity.
Source: s 19 Succession Act 2006 (NSW)
Lapsing binding superannuation nomination
A binding nomination under the Commonwealth regulations ceases to have effect three years after it was first signed, or last confirmed or amended, or sooner if the fund's rules set a shorter period. Some funds offer non-lapsing binding nominations under their own rules.
Source: Reg 6.17A(7) Superannuation Industry (Supervision) Regulations 1994 (Cth); Moneysmart (ASIC)
Costs and helpShowHide
There is no set fee for having a will prepared in NSW. Costs depend on what you own, how complex your wishes are and who prepares the documents, and many solicitors quote a fixed or package price for a will, enduring power of attorney and appointment of enduring guardian together. NSW Trustee & Guardian publishes its own prices and prepares these documents at no charge for people eligible for a full Centrelink Age Pension, and for some Department of Veterans' Affairs and Disability Support Pension recipients who would otherwise be eligible. If it is appointed executor, its fees for administering the estate are generally charged from the estate after death. From 1 July 2026, NSW Land Registry Services charges $182.71 (including GST) to register a power of attorney. Informal will applications, statutory will applications and family provision claims are Supreme Court proceedings where daily hearing fees can apply and an unsuccessful party may be ordered to pay the other side's costs. The Court has a costs-capping protocol for probate proceedings, and parties must tell it in writing if the net estate is under $1.5 million. Ask for a written costs disclosure before you engage anyone.
Under Legal Aid NSW policy, grants of legal aid are not available for matters under the Succession Act 2006 (NSW), including wills and family provision claims, except in limited cases where a person is likely to lose their home. Legal Aid NSW publishes free plain-English information about making a will, powers of attorney and enduring guardianship, and LawAccess NSW, which is part of Legal Aid NSW, can point you to the right service.
- LawAccess NSW
Free legal information and referral service that is part of Legal Aid NSW. Call 1300 888 529 or use web chat, 9am to 5pm Monday to Friday. Staff are not lawyers but can point you to the right service.
- Law Society of New South Wales Solicitor Referral Service
Free referral to up to three private law firms, including firms with accredited specialists in wills and estates if you ask. Call (02) 9926 0333, 9am to 5pm. The firms charge their normal fees.
- NSW Trustee & Guardian
Prepares wills, powers of attorney and enduring guardianship appointments, at no charge for eligible pensioners. Offers paid WillSafe storage, which is free if it is appointed executor or attorney, and acts as executor and trustee. Wills enquiries: 1300 102 030.
- Community Legal Centres NSW
Find Legal Help tool that matches you with a free community legal centre in NSW. Seniors Rights Service is a specialist community legal centre for older people.
- Seniors Rights Service
Free and confidential legal help for older people in NSW, including wills, powers of attorney and other documents for the future, and information about elder abuse. Call 02 9281 3600.
Where to get help
- LawAccess NSW
Free legal information and referrals for people in NSW, run as part of Legal Aid NSW. Call 1300 888 529 or use web chat, 9am to 5pm Monday to Friday.
- Legal Aid NSW
Plain-English information on making a will, powers of attorney, enduring guardianship and what happens when someone dies without a will.
- NSW Trustee & Guardian
Will preparation, WillSafe storage, executor and trustee services and financial management. Its website also has information about the Public Guardian.
- Supreme Court of NSW, Wills and Probate
Information about probate, letters of administration, depositing a will, contested proceedings and getting copies of wills and grants.
- NSW Civil and Administrative Tribunal, Guardianship Division
Applications for guardianship and financial management orders, and reviews of enduring guardianship appointments and enduring powers of attorney.
- Law Society of New South Wales Solicitor Referral Service
Free referral to private law firms, including firms with accredited specialists in wills and estates. Call (02) 9926 0333.
- Seniors Rights Service
Free legal help for older people in NSW, including powers of attorney and documents for the future, and information about elder abuse. Call 02 9281 3600.
Practical guidanceShowHide
How do you sign a will correctly in NSW?
The rules are in section 6 of the Succession Act 2006 (NSW). The will must be in writing. It must be signed by you, or by another person in your presence and at your direction. Your signature must be made or acknowledged in the presence of two or more witnesses who are present at the same time, and at least two of those witnesses must then attest and sign the will in your presence, though they do not have to be in each other's presence. The signature must be made with the intention of executing the will, and it does not have to be at the foot of the document. Witnesses do not need to know that the document is a will. A person who cannot see well enough to attest that you signed cannot act as a witness. A gift to a witness is void unless at least two of the witnesses are not beneficiaries, everyone who would benefit if the gift failed consents in writing, or the Court is satisfied you knew and approved of the gift and made it freely and voluntarily. In practice, use two independent adults who are not beneficiaries (many people also avoid a beneficiary's partner), sign every page, and date the will clearly. Do not unstaple the will or attach anything to it after signing: the Supreme Court says affidavit evidence may be needed if it looks as if documents were attached and later removed, or if the will has been torn or otherwise defaced since it was signed.
Can a NSW will be witnessed over video link?
Yes. Part 2B of the Electronic Transactions Act 2000 (NSW) permanently allows the signing of a will, a power of attorney or an appointment of enduring guardian to be witnessed by audio visual link. This came about through the Electronic Transactions Amendment (Remote Witnessing) Act 2021 (NSW), which made the pandemic-era provisions permanent in November 2021. The witness must see you sign the document in real time, sign the document or a copy of it (for example a counterpart, or a scanned copy you send them, as soon as practicable), be reasonably satisfied that what they sign is the same document or a copy of it, and endorse it with a statement of the method used and that it was witnessed in accordance with section 14G. You and the witness can be outside NSW if the document is governed by NSW law. Remote witnessing is about how the signing is observed, not about electronic signatures: the scheme does not allow documents to be signed electronically, and a document can be signed electronically only where another NSW law permits it. If in-person witnessing is possible, it remains the simpler course.
What if a will was never signed properly?
Section 8 of the Succession Act 2006 (NSW) gives the Supreme Court a dispensing power. If a document, or part of a document, states the testamentary intentions of a deceased person but was not executed in accordance with the Act, the Court can declare that it forms the person's will, an alteration to their will, or a full or partial revocation, provided the Court is satisfied the person intended it to have that effect. In deciding, the Court can look at evidence about how the document was executed and evidence of the person's testamentary intentions, including statements they made. The application is made by summons in the Supreme Court asking for a declaration under section 8, supported by affidavit evidence, often from the solicitor who took the will instructions. Everyone affected, such as beneficiaries under the informal document and under any earlier will (or, if there is none, those entitled on intestacy), must be served with notice or give their consent. It is a genuine safety net, but it is slower and more costly than signing a will properly.
Who can make a family provision claim against your NSW estate?
Chapter 3 of the Succession Act 2006 (NSW) allows an eligible person to apply to the Supreme Court for a family provision order if adequate provision for their proper maintenance, education or advancement in life has not been made by the will or on intestacy. Eligible persons include a spouse at the time of death, a person living in a de facto relationship with the deceased at death, a child, a former spouse, a person who was at any time wholly or partly dependent on the deceased and who was a grandchild or a member of the deceased's household, and a person living in a close personal relationship with the deceased at death. An application must be made within 12 months of the date of death unless the Court allows otherwise or the parties consent. NSW also has a notional estate regime, which lets the Court designate property that has left the estate, for example through certain lifetime transactions, a joint tenancy passing by survivorship or a superannuation benefit, as available to satisfy an order. This means that moving assets out of your estate during your lifetime will not necessarily put them beyond the reach of a family provision claim.
How do enduring powers of attorney and enduring guardianship differ in NSW?
NSW splits the job in two. An enduring power of attorney under the Powers of Attorney Act 2003 (NSW) covers money and property: banking, paying bills, selling the house, dealing with investments. It does not authorise anyone to make medical, accommodation or lifestyle decisions. For those you need a separate appointment of enduring guardian under Part 2 of the Guardianship Act 1987 (NSW). Each document has its own witnessing rule. An enduring power of attorney must be witnessed by a prescribed witness who certifies that they explained its effect to you. An appointment of enduring guardian must be witnessed by an eligible witness who certifies that you signed voluntarily and appeared to understand it. Since 1 September 2026, a new appointment must be in, or to the effect of, Form 1 in the Guardianship Regulation 2026 (NSW). The form lists the decisions you can give your guardian, including a new option to consent to, or refuse, the use of a restrictive practice, meaning something that restricts your rights or freedom of movement. An appointment validly made on the earlier form before that date remains valid. Both documents require the appointee to accept: an enduring power of attorney confers no authority until the attorney signs to accept it, and an enduring guardianship appointment must be endorsed with the guardian's acceptance. An appointment of enduring guardian is revoked if you later marry someone other than the appointee. If neither document exists when capacity is lost, the family may need to apply to the Guardianship Division of NCAT, which can appoint a family member or friend, or appoint the Public Guardian as guardian and NSW Trustee & Guardian as financial manager.
What happens if you die without a will in NSW?
Chapter 4 of the Succession Act 2006 (NSW) sets out the intestacy rules. A spouse includes a de facto partner if the relationship had lasted a continuous two years or produced a child, or was a registered relationship. If you leave a spouse and no children or other descendants from another relationship, your spouse takes the whole estate. If there are descendants from another relationship, your spouse takes your personal effects, a statutory legacy adjusted for inflation, and half the remainder, with your children sharing the other half. If there is no spouse, the estate goes to your children, and if there are none, to your parents, then brothers and sisters (with the children of a sibling who has died taking that share), then grandparents, then aunts and uncles (with cousins taking the share of an aunt or uncle who has died). Where there is more than one spouse, for example a married spouse and a de facto partner, they share under a written distribution agreement, a Court distribution order, or in equal shares after the administrator gives notice. A single spouse can also elect to acquire property from the estate, generally within three months after the administrator's notice of that right. If no relative is entitled, the estate passes to the State. Usually someone has to apply for letters of administration before the estate can be distributed.
Where should a NSW will be stored, and who can see it?
The probate registry needs the original will. If the original cannot be found and it was last in your possession, the Court presumes you destroyed it intending to revoke it, and whoever applies for probate must file evidence to rebut that presumption. Safe options include leaving it with the solicitor who prepared it, NSW Trustee & Guardian's WillSafe storage (a fee applies unless it is your executor or attorney), a bank safe custody packet, or depositing it with the Registrar of the Supreme Court in a sealed envelope, for a fee, under section 51 of the Succession Act 2006 (NSW). Keep an unsigned copy at home with a note of where the original is, and tell your executor. After death, section 54 of the Act requires the person holding a deceased person's will to let a defined group inspect it or be given copies at their own expense. The group includes anyone named or referred to in the will, anyone named as a beneficiary in an earlier will, the surviving spouse, de facto partner or issue, a parent or guardian of the deceased, anyone entitled on intestacy, a parent or guardian of a minor named in the will or entitled on intestacy, anyone (including a creditor) with a claim against the estate, and an attorney under the deceased's enduring power of attorney. Once a will is admitted to probate it becomes a public document, and anyone can apply to the Supreme Court for a copy for a fee.
Checklist
- Signed original will with two witnesses
- Schedule of assets, liabilities and how each asset is owned
- Certificate of title details or property reference for real estate
- Enduring power of attorney with the attorney's signed acceptance
- Appointment of enduring guardian with the appointee's acceptance
- Superannuation member statement and current death benefit nomination
- Life insurance policy schedules, inside and outside super
- Trust deeds and company constitutions for family trusts and businesses
- Letter of wishes for the executor and guardians of any children
- Funeral, burial or cremation and organ donation wishes
- Note of where the original will is stored and who holds it
- Record of digital accounts and where access details are kept
Common questions
How many witnesses does a will need in NSW?
Two. Under section 6 of the Succession Act 2006 (NSW) your signature must be made or acknowledged in front of at least two witnesses who are present at the same time, and at least two of them must then sign in your presence. They need not sign in each other's presence and need not know the document is a will. Choose adults who are not beneficiaries, because under section 10 a gift to a witness can be void unless an exception applies, such as at least two other witnesses who are not beneficiaries.
Does marriage cancel my NSW will?
Generally yes. Section 12 of the Succession Act 2006 (NSW) provides that a will is revoked by the marriage of the testator. There are exceptions, including a will made in contemplation of that particular marriage or of marriage generally, a gift to the person the testator is married to at death, and an appointment of that person as executor, trustee, advisory trustee or guardian. Because it can be hard to show later that a will was made with a particular marriage in mind, many people make a new will before the wedding that says so expressly, or make a new will after it.
What happens to my NSW will if I divorce?
Under section 13 of the Succession Act 2006 (NSW), a divorce or an annulment revokes any gift to your former spouse and their appointment as executor, trustee, advisory trustee or guardian, unless a contrary intention appears in the will. One exception is an appointment of your former spouse as trustee of property left on trust for beneficiaries that include their children, which is not revoked. The will then operates as if your former spouse had died before you, and the rest of it continues to operate. Because a partly revoked will can leave part of the estate undisposed of, causing a partial intestacy, many people make a fresh will after a divorce rather than relying on these rules.
Does separating from my partner change my will?
No. Separation does not cancel your will, your enduring power of attorney, your appointment of enduring guardian or your superannuation nomination. Until a divorce takes effect, your spouse can still inherit under your will and remain your executor, and an existing super nomination in their favour stays in place. If you separate, consider making a new will, revoking and replacing your power of attorney and enduring guardianship appointment, and updating your super nomination, rather than waiting for the property settlement.
Can the Supreme Court accept a will that was not signed properly?
Yes. Section 8 of the Succession Act 2006 (NSW) lets the Court dispense with the execution requirements if it is satisfied the deceased intended the document to form their will, an alteration to it, or a revocation. The Court can consider evidence about how the document was executed and evidence of what the deceased said about their intentions. Everyone affected must be notified. It is costly and uncertain, so it should never be a substitute for signing a will properly.
Can someone make a will for a person who has lost capacity in NSW?
In limited circumstances. Section 18 of the Succession Act 2006 (NSW) lets the Supreme Court authorise a will to be made, altered or revoked for a living person who lacks testamentary capacity. You must first obtain the Court's leave under section 19, supported by evidence of incapacity, the size of the estate, the terms proposed and who would otherwise benefit. The Court must be satisfied, among other things, that the proposed will is one the person would likely have made if they had capacity. If the order is made, the will is signed by the Registrar, sealed with the Court's seal and deposited with the Registrar.
Do I need to register my enduring power of attorney in NSW?
Only if your attorney needs to deal with land. An enduring power of attorney under the Powers of Attorney Act 2003 (NSW) is effective once it is properly signed, witnessed by a prescribed witness and accepted by the attorney, without registration. But a deed or dealing affecting land signed under a power of attorney has no effect unless the power is registered with NSW Land Registry Services (leases of three years or less are an exception). From 1 July 2026 the registration fee is $182.71 including GST.
Is my superannuation covered by my NSW will?
Usually not. Superannuation is held on trust by your fund and does not automatically form part of your estate, so your will does not control it. If you have no valid binding nomination, your fund may decide who receives your death benefit. A binding nomination must direct payment to a dependant or to your legal personal representative; if you nominate your legal personal representative, the money flows into the estate and is distributed under your will. A lapsing binding nomination expires after three years unless renewed, while some funds offer non-lapsing nominations.
Sources
- Succession Act 2006 No 80 (NSW) - NSW Legislation (accessed 8 Nov 2026)
- Powers of Attorney Act 2003 No 53 (NSW) - NSW Legislation (accessed 8 Nov 2026)
- Guardianship Act 1987 No 257 (NSW) - NSW Legislation (accessed 8 Nov 2026)
- Guardianship Regulation 2026 No 437 (NSW), in force from 1 September 2026 - NSW Legislation (accessed 8 Nov 2026)
- Electronic Transactions Act 2000 No 8 (NSW) - NSW Legislation (accessed 8 Nov 2026)
- Probate and Administration Act 1898 No 13 (NSW) - NSW Legislation (accessed 8 Nov 2026)
- NSW Trustee and Guardian Act 2009 No 49 (NSW) - NSW Legislation (accessed 8 Nov 2026)
- Superannuation Industry (Supervision) Regulations 1994 (Cth), Compilation No 159 (1 July 2026), reg 6.17A - Federal Register of Legislation (accessed 8 Nov 2026)
- Superannuation Industry (Supervision) Act 1993 (Cth) - Federal Register of Legislation (accessed 8 Nov 2026)
- NSW Communities and Justice - Witnessing legal documents remotely (accessed 8 Nov 2026)
- Supreme Court of NSW - Probate (accessed 8 Nov 2026)
- Supreme Court of NSW - Applying for a grant of probate (accessed 8 Nov 2026)
- Supreme Court of NSW - Complex probate proceedings (accessed 8 Nov 2026)
- Supreme Court of NSW - Contested proceedings (accessed 8 Nov 2026)
- Supreme Court of NSW - Depositing a Will with the Supreme Court of NSW (accessed 8 Nov 2026)
- Supreme Court of NSW - Wills and probate: copies and access (accessed 8 Nov 2026)
- NCAT - Guardianship, guardianship orders, financial management and review of enduring power of attorney (accessed 8 Nov 2026)
- NSW Government - Learn about Wills (NSW Trustee and Guardian) (accessed 8 Nov 2026)
- NSW Trustee and Guardian - Our fees (accessed 8 Nov 2026)
- NSW Land Registry Services - Power of attorney and Old System deeds (accessed 8 Nov 2026)
- NSW Land Registry Services - 2026/27 fees (in effect from 1 July 2026) (accessed 8 Nov 2026)
- Legal Aid NSW - Making a will (accessed 8 Nov 2026)
- Legal Aid NSW - Policy 4.20 Matters for which legal aid is not available (accessed 8 Nov 2026)
- Legal Aid NSW - Contact us (LawAccess NSW) (accessed 8 Nov 2026)
- The Law Society of NSW - Solicitor Referral Service (accessed 8 Nov 2026)
- The Law Society of NSW - Wills and estates FAQs (accessed 8 Nov 2026)
- Moneysmart (ASIC) - Who gets your super if you die (accessed 8 Nov 2026)
- Seniors Rights Service - Legal services (accessed 8 Nov 2026)