It’s a question more Australians are asking, especially as digital communication rises and informal conversations about final wishes become more common. According to a 2023 Australian Seniors survey, over 52% of Australians aged 50 and older have not formalized their will, and many have only discussed their wishes verbally with family members. But are oral wills legally valid in NSW? And what happens when someone passes without a written will? Can an oral or recorded statement be recognised legally in New South Wales?
In this article, Legal Finda will guide you through the legal standing of oral wills, recorded wills, and testamentary wills in Australia. Whether you're planning your estate or sorting out the affairs of a loved one, this is essential information every Australian over 40 should know.
Understanding Wills in NSW: The Legal Basics
In New South Wales (NSW), a will is a legal document that outlines how a person wants their assets distributed after death. To be valid under the Succession Act 2006 (NSW), a will must usually:
- Be in writing
- Be signed by the person making the will (the testator)
- Be witnessed by two or more people
These formal requirements are in place to avoid disputes and ensure the testator's intentions are clear.
Are Oral Wills Legally Valid in NSW?
Let’s get straight to it: Are oral wills legally valid in NSW? The short answer is no, not in the traditional sense—unless exceptional circumstances apply.
The Succession Act does allow for informal wills, but proving the intention and authenticity of an oral will is complex. Courts require strong evidence that the deceased intended for those spoken words to constitute a will—and even then, it’s not guaranteed the court will accept it.
For instance, an oral will made during a conversation on someone’s deathbed may be reviewed by the Supreme Court, but it would need corroborating evidence like witness testimony, a consistent history of intent, or supporting documents.
Key takeaway: If your estate plan is important, don’t rely on spoken words alone.
The Legal Standing of Recorded or Video Wills
With smartphones and digital recording becoming part of daily life, many people wonder: Are oral wills legally valid in NSW when recorded on video or audio?
The answer is: Possibly, but with conditions. If the recording clearly shows:
- The person's identity
- Their intent to make a will
- Clear instructions for asset distribution
- And it’s made voluntarily and without coercion
…then a court may consider it a valid informal will under Section 8 of the Succession Act. However, these cases are rare and often involve lengthy court processes and legal costs.
Legal Finda recommends using recordings only to complement a written will—not to replace it.
Testamentary Wills in Australia: The Gold Standard
A testamentary will is the traditional and most widely accepted format in Australia. It is:
- Written
- Signed by the testator
- Witnessed properly
- Often created with legal advice
These wills are easy to verify, hard to challenge, and accepted by all Australian courts, including in NSW.
While informal wills (such as oral or recorded) may be accepted in exceptional cases, testamentary wills remain the safest, most secure form of estate planning.
Why Non-Written Wills Are Problematic?
Are oral wills legally valid in NSW? Technically yes, but the reality is filled with legal challenges. Non-written wills—such as verbal promises or video statements—are often made under emotional, urgent, or informal conditions. This makes them risky for legal recognition.
Common issues include:
- Lack of clarity: Spoken words may be misinterpreted or forgotten
- No witnesses: There’s no neutral party to confirm what was said
- No legal language: Key legal terms may be omitted
- Disputes among heirs: Oral will often lead to family disagreements or even court battles
Even if someone records a will or makes a clear oral statement, it may still be contested and rejected.
Real Cases: How NSW Courts View Informal Wills
Several court cases illustrate the complex answer to Are oral wills legally valid in NSW?
- Accepted: In Yazbek v Yazbek (2012), the court accepted a typed, unsigned document as a valid will because there was enough evidence to show the deceased intended it as such.
- Rejected: An oral will made over the phone and witnessed by no one was rejected in a 2017 case due to insufficient proof.
Lesson: The bar for proving non-written wills is high. It’s always better to prepare a proper will and avoid the emotional and financial toll of litigation.
What Should You Do If a Loved One Left an Oral or Recorded Will?
If someone you care about has passed and only left a video or oral will, you might be asking yourself, Are oral wills legally valid in NSW, and what now?
Here’s what you can do:
- Seek legal advice immediately – Time matters in these cases
- Gather evidence – Save recordings, texts, emails, or anything that shows intent
- Identify witnesses – Anyone who was present during the declaration may be crucial
- File for probate – Apply through the NSW Supreme Court and provide all supporting documentation
Legal Finda can connect you with a probate lawyer experienced in informal wills to assess your chances and help you navigate the process.
What Makes a Will Valid in Australia? Quick Checklist
Whether you're reviewing an existing will or planning your own, use this checklist to ensure legal validity:
- In writing
- Signed by the testator
- Signed in the presence of two adult witnesses
- Made voluntarily and without pressure
- Clearly states how assets should be distributed
- Appoints an executor
Anything outside these requirements—including oral and recorded wills—falls into a legal grey area. If you’re wondering Are oral wills legally valid in NSW, the answer hinges on whether all legal tests are met—and that’s no simple task.
Is It Worth Relying on an Oral Will?
Simply put: No.
Even if the law may allow for the recognition of an oral or recorded will, the burden of proof is high, the process is costly, and outcomes are uncertain. While it might seem convenient or emotionally meaningful, it’s not legally reliable in NSW.
So, when you ask Are oral wills legally valid in NSW, remember that relying on them opens the door to disputes, court delays, and potential invalidation.
Conclusion
So, are oral wills legally valid in NSW? Technically, yes—but only under rare and highly specific conditions. The safest and most legally reliable path remains the traditional one: a clearly written, properly signed, and witnessed will.
Whether you're preparing your first will or reviewing an old one, Legal Finda is here to help you ensure it's done right. Our network of experienced lawyers can advise you on testamentary wills, video recordings, and every aspect of estate planning.
Connect with a trusted legal expert today through Legal Finda, and make sure your wishes are crystal clear.
