Introduction and the law of wills

Aside from ensuring your hard-earned assets go to whomever you choose after your death, a valid will also saves your loved-ones needless trauma during a time they’re already grieving. A will makes your intentions unequivocally clear and, as long as your will is created within the rules outlined below, it will, most likely, withstand the scrutiny of third-parties

Introduction and key legislation

This chapter explains the process of administration of an estate, whether the deceased has made a will or not, and goes through the basic order of the steps to be taken and the relevance of the major rules.

Any reader who is making a will would find it useful to read the explanation of how an estate is processed (see Estates). This explains why it is important to write a will in the right way, and why it is important to choose an executor carefully.

The standard will provided at the end of the chapter is a model that is simple and straightforward. More complex instructions in a will are best checked by a lawyer before the will is signed. Few things are more distressing than a bequest that fails because of a badly drafted will.

Traditionally, terminology used in the area of wills and estates is gender-specific. For example, the person nominated by the deceased to carry out directions regarding property in the will is called an “executor” if male and an “executrix” if female. Another, more modern approach is to use the gender-neutral term “personal representative”, but as most people are still most familiar with the term executor, we use that throughout the chapter.

The law relating to wills was previously set out in the Wills Act 1958 (Vic) (“WA 1958”). This has been replaced by the Wills Act 1997 (Vic) (“WA 1997”). The WA 1997 will affect a will made after 20 July 1998, or the will of a person who died after that date leaving a will, whenever executed. The WA 1958 may still affect wills made prior to 20 July 1998. If there is any doubt as to which statute applies to a particular will, legal advice should be obtained.

The law of wills

A will is a document that sets out the wishes of a person for the distribution of their property upon death. The term “will” includes a codicil (an addition made to an earlier will).

The law of wills has many pitfalls. It is highly advisable to consult a solicitor, the State Trustees (formerly the Public Trustee) or another trustee company about drawing up a will, particularly if complex issues are involved. These could be such things as estate claims, taxation considerations, the creating of trusts and beneficiaries with disabilities. A will is usually taken at face value. If it is incorrectly drafted, it is very difficult to have evidence admitted to show what the willmaker may have intended. It is, in any case, very expensive to have a will interpreted by the Supreme Court.

If a person wishes their property to be disposed of in a particular way upon death, then there is no other way to ensure this than by making a will. If no will is made, division of a deceased’s property is made according to the scheme laid down in part I division 6 of the Administration and Probate Act 1958 (Vic) (“A&P Act”). This division may be directly against the wishes of the willmaker. To avoid this possibility, a will must be made.

Further, if no will is left, an administrator (the traditional female term is administratrix) is appointed by the court. This is usually the person who takes the largest share in the estate. The court may also order reasonable payment for that person by way of executor’s commission out of the estate of the deceased person for acting as administrator, whereas a person nominated as executor in a will, particularly if a family member, may decline to charge (s 65 A&P Act). A surety or insurance bond may also be required by the Registrar of Probates in some cases to guarantee the proper completion of the estate (s 57 A&P Act; Order 7 Supreme Court (Administration and Probate) Rules 2014).

When a person dies leaving a valid will, any property that the person owned is distributed according to the deceased’s wishes as expressed in that will. The traditional terms for the deceased person is testator or testatrix, but in this chapter we use the gender-neutral term willmaker. The property, which can be land or personal property (including goods, shares, deeds, money, etc.), is referred to as the estate.

When a person dies without leaving a will, that person is said to have died intestate; if a part of a will is not valid, then the person dies intestate in relation to that part. Any property owned by the deceased person who dies intestate is distributed to the deceased person’s nearest blood next of kin, according to the scheme laid down by section 50 (and following) of the A&P Act. Under this scheme the property goes to the surviving spouse or domestic partner, the children of the deceased person, the parents or other next of kin (i.e. any blood relations) as laid down in that Act (ss 50–54). For more details, seeThe distribution of an intestate’s estate to the next of kin: a summary table” in Estates.

If the person dies intestate without leaving a spouse or domestic partner or any next of kin, the property passes to the Crown. Next of kin means even remote relations, and searches may be necessary to find the “lost” relatives (s 55).

The willmaker usually names one or more persons in the will to carry out the directions for disposing of property contained in the willmaker’s estate – their executor. A willmaker should ask a proposed executor if they are willing to act. This person, if willing, can deal with the estate only after the will has been approved as valid by the Registrar of Probates, or a judge of the Supreme Court of Victoria exercising its probate jurisdiction.

This approval is called a grant of probate and the document giving the approval is called the probate parchment. Any person who receives benefits under the will is called a beneficiary. Probate, in this context, should be distinguished from probate duty, which was the former payment of duties to the government on death (currently there are no state or federal probate or estate duties). A will is not invalidated if no executor is appointed, or it is undated. For more detail, see Estates.

A will is valid even where the willmaker has changed names and/or address between the time the will was signed and their death. Similarly, a beneficiary can receive benefits under a will where such changes have occurred, although it may be necessary for that person to provide evidence of identity.

Formalities of the will

1 The will must be in writing (this includes handwriting, in ink or pencil, typewriting, printing, lithography, photography or other means of representing or reproducing words in visible form). The will can be written in any language, although to avoid problems of translation and interpretation, it is desirable that it be written in English (s 7 WA 1958).

2 A will executed prior to 20 July 1998 must be signed at the end of the will by the willmaker. This includes the written name, the initials or a mark of the willmaker, or a signature of some other person on behalf of and in the presence of the willmaker. Although another person can only sign for the willmaker if the willmaker is competent to make a will and directs the other person to sign on their behalf. Wills signed after 20 July 1998 need not be signed at the end. However, it is prudent to sign a will at the end as this clearly indicates what is contained in the will.

3 The willmaker and each witness to the will should sign each page of the will so that each page is identified as part of the will.

4 The signature and any initials of the willmaker must be witnessed by two witnesses. The witnesses must sign after the willmaker has signed. One of the witnesses may also be the person who signed for the willmaker, or who helped the willmaker sign. Both witnesses must be present together at the time of signing the will by the willmaker. Where wills are signed after 20 July 1998, the witnesses must be present when the willmaker signs, but they need not sign their names in the presence of the other witness. To avoid confusion it is advisable for witnesses’ signatures to appear immediately below that of the willmaker. If one or more of the formalities are not complied with, the person could be regarded as having died without a valid will. The witnesses need not know that the signature they are witnessing is a signature to the will of the willmaker (s 8 WA 1997).


NOTE

It is highly advisable for all signatures to be made with the same pen.


If the will is longer than one page, all the separate pages should be joined (so that nothing is lost). No other document or piece of paper should be pinned or clipped to the will. If professional help is not taken, will forms – available for sale from newsagents and some legal centres (e.g. Fitzroy Legal Service) – should be used where possible.

Witnessing the will is known as “attestation” (ss 7, 8 WA 1958; ss 7, 10 WA 1997) (seeFormal language”). Witnesses should not be a beneficiary in the will, nor should they be married to, or a domestic partner of, people mentioned in the will (seeInterested witnesses”). Blind people cannot witness a will (s 10 WA 1997).

The will should be dated at the time of signing. Where no date appears, it will be necessary for the witnesses to swear an affidavit as to the date on which it was signed. The will is effective from the date of the willmaker’s death, not from the date of signing. Where there is more than one will in existence, the Registrar of Probates must be satisfied that the document produced is the last valid will of the willmaker.

The WA 1997 provides that for deaths after 20 July 1998, application can be made to the court to validate a document that the deceased intended as a will but which was not signed by the willmaker in the presence of two witnesses (s 9). An oral intention to leave an estate in a particular way is not covered by this provision, which requires that an incorrectly executed document be in existence. The applicant must prove on the balance of probabilities that the deceased intended the document to be the last will.

The Supreme Court now has the power under section 9 of the WA 1997 to admit to probate documents that are not executed in accordance with the formal requirements for the execution of wills (as set out in section 7 of the WA 1997). For the court to make such an order three things must be shown:

1 that a document exists;

2 that the document sets out the testamentary wishes of the testator; and

3 that the deceased testator must have intended that particular document without anything more, to be their last will.

Formal language

A will can be made using formal or informal language; no legal jargon need be used. The important thing is that the willmaker’s wishes are clearly expressed. Essentially, it must state that it is the will of the willmaker, and that upon death the property owned by the willmaker is to be dealt with according to clear directions contained in the will.

It is, however, highly desirable to use a standard phrase identifying the willmaker’s and witnesses’ signatures. This is called the attestation clause. It is usually placed at the foot of the will, beside the space allowed for the signatures of the willmaker and the witnesses. The following is an example of an attestation clause:

“Signed by the willmaker in the presence of us both (both of us being present at the same time).”

If this clause or a clause having the same effect is not used, a sworn document is required of the two witnesses as to their attestation, when the will is submitted for probate. If one or both witnesses die before the willmaker, or cannot be found after proper enquiry, the will may still be valid if the evidence of other persons who may have been present at the time of signing the will, or evidence as to identification of handwriting of the witnesses and the testator, is available.

The courts, in deciding the meaning of a will, will look first at the actual wording of the will. If the willmaker is not using professional legal help, having another person read over the will may help in ensuring that the meaning of the will is clear. It at all possible, professional help should be sought.

Storage of a will

A will is an extremely important document. Itshould be kept in a secure place, and the executor appointed under the will told where it is. If the original of a will is lost in the custody of the willmaker, there is a rebuttable presumption that it is revoked. Therefore wills should be kept in safe custody with a solicitor, trustee company, accountant or any other institution that will hold documents such as wills in safe custody. The Supreme Court Probate Registry will accept wills for safekeeping under section 5A(APA). The fee is currently $21.20.