Making A Will In Victoria

A will is a legal document that specifies a person’s directions for their estate when they die. In Victoria, wills are governed by the Wills Act 1997 and the Administration and Probate Act 1958.

In the document, a person can leave instructions for any property to which they are entitled at the time of their death. It can also contain instructions about, for example, the care of children or pets, funeral arrangements, and donations to charity.

Execution of a will

To be legal in Victoria, a will must be:

• in writing;
• signed by the person making it (the “testator”);
• signed by the testator in the presence of 2 witnesses aged over 18, present at the same time;
• signed and attested to by the witnesses in the presence of the testator.

It should also be dated. If there is no date listed, the witnesses may have to swear an affidavit as to the date it was signed. The date is important to prove the will is the testator’s last one.

The witnesses must be aged at least 18. They can be a beneficiary.

A will made by a person aged under 18 (a “minor”) is not valid unless there are specific circumstances, such as when it is made in contemplation of marriage, or the minor is married.

The will takes effect as if it had been executed immediately before the testator’s death. If the testator has disposed of some of the property for which instructions have been left, any remaining property can be distributed.

The testator nominates an executor to be responsible for carrying out the testator’s wishes, mainly distributing assets to beneficiaries after all debts and taxes are paid.

A will should be kept in a safe place. A solicitor will usually store it at no charge and provide a copy to the testator. The executor should be told where the document is stored so it can be located easily upon the testator’s death. A will can also be deposited with a court registrar, usually for a fee.

Interpretation of a will

If language used in the will make the will or part of it meaningless, or ambiguous on the face of it or in the current circumstances, a court is permitted to consider evidence of the testator’s intention to help interpret the language used.

Revocation of a will

A will is revoked by:

• the making of a new one;
• a marriage, civil partnership or de facto relationship;
• divorce, annulment or end of a civil partnership;
• express revocation;
• the testator burning, tearing or otherwise destroying it with an intention to revoke it;
• the testator writing on, or dealing with it, in a way that satisfies the court of an intention to revoke it.

Updating a will

A will should be updated in situations such as when:

• the testator marries or enters a de facto relationship;
• the testator separates, divorces, or ends a de facto relationship;
• the testator has children or grandchildren;
• an executor or beneficiary dies;
• a testator buys or sells property;
• a testator’s financial situation changes significantly.

If the change is minor, the testator will need to make a codicil, which is an authorised amendment. It needs to be in writing, and signed and witnessed by 2 people. If the change is major, a new will is usually required.

A court can make an order to rectify a will to carry out the testator’s intentions if the document does not do this or a clerical error was made. A person can apply for such an order within 6 months of the death of the testator.

Wills for minors

The court has the power to make an order that authorises a minor to make or revoke a will. An application can be made by the minor or on behalf of the minor. Before making an order, the court must be satisfied the minor understands the nature and effect of the will or revocation, that the minor’s intentions are adequately reflected, and that it is reasonable to make the order in all the circumstances.

Lack of testamentary capacity

A court can make an order to make or revoke a will on behalf of a person who lacks “testamentary capacity” (soundness of mind), such as when a person is suffering from dementia. An application for an order must include:

• the reasons for it;
• any evidence as to the wishes of the person concerned;
• any evidence of the person concerned being able to take part in proceedings and express their wishes;
• any evidence of the likelihood of the person concerned acquiring or regaining testamentary capacity;
• any evidence of the circumstances of any likely beneficiaries;
• details of any previous will.

To make or revoke a will after an application, the court must be satisfied that:

• the person concerned is incapable of making or revoking a will;
• the suggested will or revocation reflects what the intentions of the person concerned would have been, had the person been of sound mind;
• it is reasonable in all the circumstances for the court to authorise the making of the will.

Family provision order

Under the Administration and Probate Act, a family provision order can be made by the court in relation to a deceased estate to provide from that estate for the proper maintenance and support of an “eligible person”. An “eligible person”, such as a spouse, de facto partner, former spouse, child or dependant, must apply for an order within 6 months of the testator’s death.  The court can make an order when it is satisfied the will did not make adequate provision for the applicant.

Dying intestate

A person who dies without a will is said to have died “intestate” and their estate is distributed according to the formula set out in the Administration and Probate Act. Using the formula, the person’s estate becomes the property of next of kin, in order of priority listed under the Act.

For advice or representation in any legal matter, please contact Armstrong Legal.