Writing a Will: The Solicitor’s Checklist

Writing a Will Starts With the Person and Their Assets

Identify the person making the will, called the testator. Testatrix is the traditional feminine term for a will-maker. Testamentary means relating to a will.

Establish what property they can give through it. The executor administers the estate after death. A trustee holds and manages property under a trust, while a beneficiary receives a gift or benefit.

1. Confirm the client’s identity, age and relevant interstate or overseas connections. Record the scope of the retainer and any urgency.
2. Obtain existing wills and codicils, along with relevant trust deeds, ownership records and superannuation nominations.
3. Prepare an asset and liability schedule. Record legal ownership, supporting documents and any debt or security affecting each proposed gift.
4. Separate estate assets from assets requiring another succession mechanism. Resolve uncertain ownership before treating an asset as available for a gift.

NSW Trustee and Guardian explains that jointly owned property held as joint tenants generally passes to the survivor. A tenant-in-common interest requires a different analysis. Trust assets and company assets generally sit outside the individual’s estate, although personally owned company shares can form part of it. Superannuation requires its own fund and nomination checks.

The working schedule must show both the proposed gift and the ownership evidence supporting it. A client’s description of an asset as “mine” is a starting point for questions.

Take the Testator’s Instructions and Check Capacity

Take instructions directly from the testator and record how you establish that they express the client’s own wishes. Arrange a private interview and identify who booked the appointment or supplied earlier instructions. A relative paying the bill does not become the person directing the will.

Ask open questions about the client’s family, property and intended gifts. Explore reasons for substantial changes or exclusions and record possible pressure or conflicting interests. If an interpreter is needed, use a qualified independent interpreter and record their identity and involvement. The Law Society of NSW’s estate-planning guidance addresses direct instructions and non-family interpreters in urgent will preparation.

Assess testamentary capacity and the client’s knowledge and approval of the proposed will as distinct matters. Record the client’s answers and your observations, including communication support and any difficulty understanding the draft. A signed instruction sheet alone does not explain how you reached your assessment.

Where illness, medication or observed confusion raises capacity concerns, obtain appropriate medical evidence and address the particular concerns with the clinician. Urgency requires prompt judgment about the available course. The Queensland Law Society’s guidance on will instructions stresses contemporaneous notes and recording information beyond evidence supporting capacity.

Keep the preparation assessment focused. The separate testamentary capacity guide addresses the fuller legal and evidentiary analysis.

Draft Gifts, Residue and Appointments

Bequests are gifts made in a will. Read them alongside the estate’s debts and administration expenses, which affect what remains for distribution. Specific gifts identify particular property or amounts. The residue clause deals with the remaining estate.

Draft each provision from a recorded instruction and test how it operates if the expected beneficiary or appointee cannot take their place.

1. Record the proposed executor’s full identity and willingness to act. Obtain instructions for substitutes and explain any proposed professional remuneration.
2. Identify specific gifts precisely. Ask what happens if the asset is sold, replaced or subject to debt before death.
3. Deal with the residue, the estate remaining after liabilities, expenses and earlier gifts. Confirm shares and substitutes if a beneficiary dies first.
4. Address foreseeable changes, including further children, changed relationships and an executor becoming unable to act. Test the drafting against those scenarios.

The Legal Practitioners’ Liability Committee’s preparation checklist recommends checking beneficiary names and testing the residue against different survivorship outcomes. Explain applicable family provision risk where someone is excluded or receives less than expected. Recording reasons does not make a gift immune from a claim.

For children, discuss a guardian nomination and the intended care arrangements. Explain its effect under the applicable law and any existing parenting orders. A nomination cannot override the court’s powers or applicable statutory requirements.

A testamentary trust can hold gifts under terms set by the will. Obtain instructions about the trustee, beneficiaries and distribution conditions, with suitable advice on the proposed structure. The testamentary trust guide covers its operation beyond this drafting checklist.

Check the Will Before Execution

Compare the completed draft with the instructions and resolve each discrepancy before presenting the signing copy. Check full beneficiary names, charity identities and asset descriptions. Reconcile the gift schedule with the residue and review the result alongside trust-control arrangements or superannuation nominations.

Consider this fictional ownership example. Priya owns a savings account personally and wants her daughter to receive its balance. Priya also describes an investment property held by a corporate trustee of her family trust as her own.

The personally owned account can be addressed in Priya’s will. The trust’s property requires a separate review of the deed and control succession. Investigate any personally owned company shares or appointor powers instead of drafting a direct gift of the trust’s property as Priya’s asset.

A client-prepared or simple will still needs checks for uncertain gifts, omitted residue, incorrect ownership and defective execution. A short document can conceal complex family or trust arrangements. Define whether the retainer covers advice, redrafting, ownership enquiries and supervised signing. Those tasks, urgency and the estate’s complexity determine the quoted cost. A template cannot replace those decisions.

Read the draft through with the client using communication support where needed. Ask the client to explain the intended outcome. If the explanation differs from the draft, clarify the instruction and correct the document before execution. A second practitioner’s review can help identify drafting inconsistencies.

Execute and Preserve the Will Correctly

Arrange execution under the applicable state or territory law and keep a record of what actually happens. Witness eligibility, presence and special execution arrangements require jurisdiction-specific checks.

NSW

For an ordinary physical execution in NSW, section 6 of the Succession Act 2006 requires a written will. The testator signs, or another person signs in the testator’s presence and at their direction. The testator makes or acknowledges the signature before at least two witnesses present together. At least two witnesses attest and sign in the testator’s presence. They need not sign in each other’s presence.

These requirements appear in the NSW Supreme Court’s discussion of will execution.

Select witnesses without a beneficial interest. In NSW, an interested witness can lose their gift under section 10, subject to statutory exceptions. This does not automatically invalidate the whole will.

Section 6 also requires the signature to be made with the intention of executing the will. An informal document requires a separate section 8 analysis of the deceased’s testamentary intentions. The NSW Supreme Court’s informal-will guidance describes that court route. It does not replace a solicitor arranging proper execution. NSW audio-visual witnessing uses a separate statutory procedure, requiring real-time observation and document verification.

Victoria

Under the Victorian Wills Act 1997, section 7 requires writing and an intended signature by the testator or a directed signer. Two witnesses must be present together for signing or acknowledgement. At least two then attest and sign in the testator’s presence. Section 11 does not disqualify a witness, their spouse or domestic partner from receiving a gift. Independent witnesses still help avoid disputes.

The section 8A remote route requires a special witness and completion on the same day within Victoria. It has prescribed observation, transmission, signing and certification steps. The special witness signs last and checks compliance. Identify the resulting valid original under section 8B.

Queensland

The Queensland Succession Act 1981 section 10 requires writing and the testator’s signature or a signature made in their presence and at their direction. Two witnesses must be present together when the testator signs or acknowledges it. At least two attest and sign in the testator’s presence. A person unable to see and attest the signing cannot witness.

Section 11 generally voids a gift to an interested witness, subject to exceptions involving independent witnesses, consent or a court finding. Arrange an ordinary physical signing unless an applicable special route is established. A court’s power to admit an informal document under section 18 is separate from ordinary execution.

Western Australia

Section 8 of the Western Australian Wills Act 1970 requires writing and an intended signature by the testator or a directed signer in their presence. The testator signs or acknowledges the signature before at least two witnesses present together. The witnesses attest and sign in the testator’s presence.

A beneficial interest does not itself disqualify a witness in WA. Witnesses must be able to see the signing. The Act has separate international-will and court-dispensation provisions. Do not import Victoria’s remote procedure into an ordinary WA signing.

If remote witnessing, a directed signature, an interpreter or visual impairment affects execution, settle the permitted procedure and evidence requirements beforehand. Remote witnessing rules differ between jurisdictions. Do not treat a video call alone as compliance.

Before closing the preparation file, verify that you hold:

• The complete final signed instrument and a record identifying everyone present and how signing occurred.
• Instructions and advice about revocation, including any other will that must continue to operate for overseas assets.
• The client’s storage instructions, the original’s location and a copy supplied to the client.
• The instruction and attendance file, ownership evidence and relevant capacity or interpreter records.

Retain the file under the applicable professional requirements and the firm’s retention policy. Record how the original can be located when needed.

When the Instructions or Circumstances Change

Review the will when changed circumstances affect its gifts or appointments. Triggers include marriage, separation or divorce, a beneficiary’s death, asset disposal and concerns about the client’s capacity.

Apply the relevant jurisdiction’s revocation rules. NSW Trustee and Guardian’s relationship-change guidance explains that marriage and divorce can affect different parts of a will. Do not apply one national marriage or divorce rule, or assume separation achieves the client’s intended changes.

Use a properly prepared and executed new will or codicil for an intended amendment. Handwritten additions to an executed will can create questions about whether the change takes legal effect. If a client brings in an altered original, preserve it and establish what happened before preparing the replacement.

Prepare a Codicil or Replace the Will

A codicil is a separate document changing an existing will. Inspect the signed will and every earlier codicil before identifying the exact clause to change. Compare a limited amendment with a replacement will where several gifts or appointments interact.

Take fresh independent instructions and record capacity and knowledge and approval. Identify the original instrument consistently and check how the amendment affects specific gifts, residue and substitutes. Execute the codicil under the applicable will formalities. Legal Aid NSW explains that a codicil needs signing and witnessing in the same way as the will. Store the original instruments together and update the client copy and location record.

In a fictional example, Alex wants to increase a niece’s cash gift from $5,000 to $8,000. A properly identified codicil can amend that gift while preserving the remaining provisions. Crossing out the figure on a photocopy leaves uncertainty about execution and which instrument governs. Check the effect on residue and retain the original before preparing the amendment.

Where the client lacks testamentary capacity, consider the separate court-authorised will process available under the relevant law. In NSW, section 18 provides that route. A relative’s instructions cannot substitute for the client’s capacity to make a personal will.

Before arranging a further signing, confirm the client’s current instructions, repeat the relevant capacity and ownership checks and identify which earlier instruments the new document will replace.