Wills and Estates
Estate planning, predominantly through the drafting of a last will and testament, is a way to secure assets for the benefit of loved ones. A will is a legal document that describes the testator’s wishes for the dispersal of their estate after their death, and it also often names one or more people to be executor of the estate. If a person dies intestate (that is, without making a will), their family has to cope with the additional and unnecessary disruption that comes with administering an intestate estate. The process of making a will is similar across Australia, but there are laws that specifically govern wills and estates in Victoria. The area of law associated with wills and estates in Victoria is succession law and is governed by the Administration and Probate Act 1958.
Wills and Estates in Victoria
In Victoria, estates are composed of the assets as well as the liabilities of a deceased. However, some of the testator’s property will not form part of their estate. Property that the deceased owned jointly with someone else is not included in a deceased estate but instead passes by survivorship. This is usually the case with a marital home, which is often owned jointly with a surviving spouse. Similarly, assets that are held by companies and trusts are not included in a will, but control of a company or trust is capable of being bequeathed.
In general terms, a will outlines the distribution of any valuables of the deceased’s estate, including real property, investments, vehicles, jewellery and even domestic pets. The testator must take account of these assets with care to making them easily identifiable (for instance, listing a valuable piece of jewellery with a specific description of the materials and gemstones).
A testator should also name in the will at least one competent person to act as executor of the estate. The executor is entrusted with following the last wishes of the deceased in reference to the distribution of their estate, which may include establishing and maintaining testamentary trusts for beneficiaries.
Testators sometimes list other preferences in their will, such as specifying funeral and burial arrangements, an inclination for organ donation and nominating caretakers for the guardianship of children. However, instructions such as these are not binding on the courts or the family of the deceased.
Wills and Estates in Victoria: Impact of Marriage and Divorce
In Victoria, marriage will automatically revoke an existing will, unless the will was made in recognition of the impending marriage. A testator embarking on marriage should take care to draft a new will that makes provision for both their new spouse and anyone else they wish to make a beneficiary.
A divorce also invalidates any provision in a pre-existing will for a former spouse, unless the testator has included specific instructions to the contrary. The sole provision that is not affected by divorce is the selection of a former spouse as trustee for any assets held in trust for the testator’s children. While divorce legally revokes provision for a former spouse, the same is not true for a de facto relationship. In Victoria, the termination of a de facto relationship does not overrule the terms of a will, even if that will leaves everything to the former partner.
Who Should Make a Will?
In Victoria, everyone over the age of eighteen who is of sound mind is able to make a will. Even someone with limited assets should make a will, as it ensures that the probate process is as painless as possible for the loved ones of the deceased.
An individual who is not yet eighteen is only able to make a will if they are married or contemplating marriage. The Supreme Court can order that a minor be able to create or alter a will if they find that the minor understands the consequences of their actions, and there are reasonable grounds for the minor to proceed.
Who Cannot Make a Will?
A central assumption of wills and estates is that the testator must be able to comprehend the significance of the actions they are taking when they write a will. When a solicitor drafts a will for a client, they must be sure that the testator fully understands the process and confirm that they make the will of their own volition free from undue influence.
Wills and Estates in Victoria: Informal Wills
In Victoria, wills and estates law dictates that in order for a will to be valid, it must follow specific legal formalities. As such, it is strongly recommended that anyone wishing to draft a will should first consult a solicitor or other legal practitioner. One of the formalities is that the will should be in writing (handwritten or typewritten), initialled on each page, and signed by the testator at the end of the document. The testator must sign the will in front of two witnesses, and these witnesses must then add their signature to the will while all parties are still in attendance. These witnesses must not be a spouse of the testator or a beneficiary of the will.
A will that does not comply with the rules of estate law is sometimes deemed to be “informal”. An informal will may be challenged in court, and the estate ruled to be intestate. Despite this, the court will still try and implement the wishes of the deceased if they are sufficiently clear and were made freely and with the necessary testamentary capacity.
Wills and Estates in Victoria: Amendments
A will should be revised regularly to reflect the current financial and domestic circumstances of the testator. A good rule of thumb is to revise a will every five years or whenever a significant life event occurs, such as a marriage, birth or death in the family.
Where it is necessary to make an amendment to an existing will, it is far better practice for a will to be rewritten completely and properly executed once again. It is dangerous to alter a will through erasure, strikethrough, or by inserting new clauses in the margins of the document.
Our Wills and Estate team can help you draft a will that takes account of all your wishes for your estate. If you would like more information about wills and estates in Victoria, please call Armstrong Legal on 1300 038 223 or send us an email to make an appointment.