Will my will still be recognised by NSW law if I make it outside NSW?

Date: Jul 05, 2013
Document Type: Article

You may have made a will or be considering the possibility of making a will outside NSW. The relevant legislation deals with this situation.

Section 48 Succession Act 2006 (NSW) recognises a will as valid if it was made according to the law of the state, territory or country where:

  • The will was made OR
  • The testator (the person who made the will) lived at the time that s/he made the will or at the time that s/he died OR
  • The testator was a national at the time that s/he made the will or at the time that s/he died.

There are other situations where a will made outside NSW is recognised by the Succession Act 2006 (NSW):

  • You make a will on board a vessel or aircraft: If your will is made according to the law of the state, territory or country with which the vessel or aircraft is most closely connected, NSW law will recognise the will.
  • You make a will that deals with your immovable property: If the will is made according to the law of the state, territory or country where the property is located, NSW law will recognise it.
  • You make a new will revoking a previous will and the previous will was made according to the Succession Act 2006 (NSW) OR you make a new will revoking a previous will and the Succession Act 2006 (NSW) recognises the previous will: If your new will is made according to the same law that recognised the previous will, NSW law will recognise it.

What if there is more than 1 legal system in force in the same country?

For example, in the United States, the Federal legal system or the State legal system could apply to your will. The Succession Act 2006 (NSW) covers this type of situation.

The issue of which foreign legal system applies is decided as follows:

  • If there is a rule indicating which legal system applies to the will, adopt that rule
  • If there is no rule indicating the applicable legal system, the foreign legal system that the testator was most closely connected to applies. This is based on the circumstances of the testator at the time of her/his death or at the time that s/he made the will.

This article reflects the law as at 4 July 2013. The law changes rapidly so do not rely on this article but consult a lawyer.

Please call us if you need assistance.

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