The law of wills


What is a will?

A will is a document that sets out how a person wants their property to be distributed after their death.

If a person wishes their property to be disposed of in a particular way after they die, then there is no other way to ensure this occurs than by making a will.

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

A will is still valid if it is not dated.

Note that the term “will” includes a codicil, which is a formal addition made to an earlier will.


NOTE

A deceased person’s property can be land or personal property, including goods, shares, deeds and money. This property is also known as the deceased person’s “estate”.


In a will, one or more people are named to carry out the deceased person’s directions for disposing of their estate: these people are called the executors. The person making the will should ask proposed executors if they are willing to act. However, a will is still valid if no executor is appointed.

An executor can deal with an estate only after a will has been approved as valid by the registrar of probates, or by a judge of the Supreme Court exercising their probate jurisdiction. This approval is called a grant of probate and the document giving the approval is called the probate parchment.

Probate, in this context, is different 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).

For more information, see Estates.

What happens if no will is made?

How is the deceased person’s property divided when there is no will?

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.

If no will is made, a deceased person’s property is divided according to the scheme in part 1 division 6 of the Administration and Probate Act 1958 (Vic) (“A&P Act”). This may be directly against the deceased person’s wishes.

According to the scheme in the A&P Act (ss 50–54), any property owned by a deceased person who dies intestate is distributed to the deceased person’s nearest blood next of kin. Under this scheme the property goes to the surviving spouse or domestic partner, the children of the deceased person, and to the parents or other next of kin (i.e. any blood relations). Next of kin can mean even remote relations, and searches may be necessary to find “lost” relatives (s 55). For more details, seeThe distribution of an intestate’s estate to the next of kin: a summary table” in Estates.

If a person dies intestate without leaving a spouse or domestic partner or any next of kin, their property passes to the Crown.


NOTE

At the time of writing (30 June 2017), there is a Bill before the Victorian Parliament, the Administration and Probate and Other Acts Amendment (Succession and Related Matters) Bill 2016 (Vic), that if passed will alter the current entitlements under the A&P Act.


Who is the executor of the deceased person’s property when there is no will?

If no will is left, an administrator (the traditional term for a female adminstrator is “administratrix”) is appointed by the court. The administrator is usually the person who receives the largest share of the deceased person’s estate.

The court may order an administrator to receive an executor’s commission (i.e. a payment for acting as administrator), which is paid from the deceased person’s estate. Whereas, a person nominated as an executor in a will, particularly if they are related to the deceased, 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).


NOTE

The traditional terms for the deceased person is testator or testatrix, but in this chapter we use the gender-neutral term “willmaker”.