What Happens if a Will is Torn or Marked? (Vic)

A will in Victoria is generally valid if it has been correctly executed according to the formal requirements of the jurisdiction as set out in the Wills Act 1997. An informal will (such as one that is not signed or witnessed) may also be upheld by a court if there is evidence that the testator intended it as a legally binding last will. Sometimes, though, a will is torn or marked or otherwise damaged and when the testator dies, questions arise as to whether it remains valid. This article examines what happens when a will is torn or marked in Victoria.

Will is torn or marked to alter it

Under section 15 of the Wills Act, a person may validly alter their will if the alteration is signed by the testator and two witnesses either in the margin near the alteration or as authentication of a memorandum referring to the alteration in the will.

Will is torn or marked to revoke it

Under section 12 of the Wills Act, a person may validly revoke their will by:

• Making a later will;
• Signing a written declaration to revoke it;
• The testator, or someone else in their presence and by their direction, burning, tearing, or otherwise destroying the will with the intention to revoke it;
• The testator, or someone else in their presence and by their direction, writing on the will or otherwise dealing with it in such a way that satisfies a court that they intended to revoke it.

Criminal offence of destroying a will

Under section 86 of the Crimes Act 1958, a person commits a criminal offence if they dishonestly and with a view to gaining for themselves, destroy deface or conceal a will or other testamentary document. This is an indictable offence punishable by a maximum of ten years imprisonment.

Will is torn or marked accidentally

If a will is torn or marked and it appears that this happened accidentally, the executor must seek to have the will accepted into probate. The executor will need to adduce evidence as to the circumstances under which the will was damaged and establish that the testator did not intend to revoke the will.

Testamentary capacity

For a testator to validly revoke or alter their will, they must have testamentary capacity. Testamentary capacity is the ability to make a will and understand its implications. The level of capacity required for this depends on the will’s complexity and the number of claimants involved.

If a person no longer has testamentary capacity and their will is torn or marked because they have sought to revoke or alter it, the alteration or revocation will have no effect and the document will remain valid.

What if the will cannot be found?

Sometimes a person dies and their will cannot be located. Alternately, family members may have access to a copy of the will but may not be able to find the original. In this situation, what happens will depend on the circumstances.

If the original of the will was known to have been stored by the testator but cannot be found, it will be presumed that the testator destroyed the will with the intention of revoking it.

If the original will was stored somewhere else and cannot be found, the executor will need to produce a copy to the probate office. The copy may be signed or unsigned but there will need to be evidence that it was signed and witnessed and was not revoked by the testator.

If an executor is unable to locate a copy of the will, they will need to track down where the original will was kept. If the will cannot be found, the estate will have to be dealt with according to the rules of intestacy.

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