WILLS & ESTATES

The legislation governing this area of law is the Wills Act 1997 (Vic) (“WA 1997”). The WA 1997 will affect a will made after 20 July 1998, and in many cases the will of a person who died after that date leaving a will whenever executed. The WA 1958 now repealed legislation, may still affect wills made prior to 20 July 1998.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.

Wills

If a person wishes their property to be divided 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.

A will is a document which 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).

It is highly advisable to consult a solicitor or the State Trustees (formerly the Public Trustee) or another trustee company about drawing up a will, particularly if complex issues are involved. These could include 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 really intended. It is in any case very expensive to have a will interpreted by the Supreme Court.

Formalities of the will

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).
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. (However, 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 the willmaker’s 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.
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.
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 as this is evidence that all parties who have signed the will were together when it was executed.

When a person dies leaving a valid will

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 dead person is referred to as the testatrix if female, or the testator if male. Here the term willmaker is used to cover testator and testatrix. The property, which can be land or personal property (including goods, shares, deed, money etc) is referred to as the estate.

An executor can only administer the estate once the will is declared as valid by the Registrar of probate or by the Supreme Court of Victoria. This approval is called a grant of probate. Any person who receives benefits under the will is called a beneficiary. A will is valid even where the willmaker has changed names (e.g. by deed poll) and address between the time the will was signed and the date of 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.

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.

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. If there is no date on a will there may be difficulties in establishing it as the last will.

When a person dies without a valid will

If no will is left, an administrator (male) or administratrix (female) is appointed by the court (this is usually the person who takes the largest share in the estate) and 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; Rule 7 Probate and Administration Rules 2004).

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

Interested witnesses

An interested witness in relation to a will means a witness to the will who, or whose spouse or domestic partner, is given any property or power by the will. A domestic partner in this context means a person who was a domestic partner of the witness at the time of witnessing. An interested witness would also include beneficiaries not named, but in a group, such as “my children”.

If any interested witness does witness the will, the will may still be proved but, in the case of wills signed before 20 July 1998, that witness will lose the entitlement to take a benefit under the will, except for certain limited circumstances. (See: s.13 WA 1958.) An interested witness may sign a will after 20 July 1998 without losing his or her entitlement under the will (s.11 WA 1997). The courts, however, may be suspicious if a witness to a will also takes a benefit under the will.

Therefore, to avoid any doubts as to any eligibility to inherit, no beneficiary named in the will, or the spouse, domestic partner or child of a beneficiary, should witness the 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. 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).

Who can make a will?

Any person over the age of 18 years may make a will. A minor may make a will if the Court authorises such minor to make a specific will (s.20 WA 1997).

Any person making a will must have the mental capacity to know what they are doing (see: “Making a will” in Chapter 16*1 Disability Overview). WA 1997 also allows persons who are mentally incapable to have specific wills made for them, which are approved by the Court (ss.21-30).

The will must be made of the person’s own volition without pressure from anyone. The willmaker must also know and understand the effect of the will.

Who can draw up the will?

There is no formal requirement that a legal practitioner must draw up the will, but if the willmaker is in doubt as to any provision, either a solicitor or the State Trustees, or any private trustee company, should be consulted.

A will is an important document as it should deal with every asset the testator owns, and should therefore be kept in a safe place, e.g. in a bank, with a solicitor, or in a private safe. The executor(s) or a relative should be told of the will's whereabouts so that it can be easily located when the willmaker dies.

Changing a will

Often wills are made long before a person dies. Between the time of making the will and death, circumstances may change. The willmaker may sell or buy property, may give it away or lose it, the beneficiaries in the original will may have died, and/or new beneficiaries may come into consideration.

Whether circumstances change or not, the will remains in force as at the date of signing unless the will is changed in whole or in part (s.18 WA 1958).

How to change the will

This can be done by:

making a new will revoking earlier wills;
making a codicil to an existing will, altering part of the existing will; or
ripping up the will with the intention to revoke. This will revoke the will, but another would need to be made to replace the destroyed will.

Model will

The example of a model will gives examples of some of the things a willmaker might like to put in a will. It is a guide only. Once a will has been made, it can be taken to a community legal centre, or to a solicitor, to have it checked (see: The Law Handbook, Chapter 2.4 Advice Directory, for contact details).

For a small fee the will can be drawn up by a solicitor, a trustee company or the State Trustees. The State Trustees has a charge for a simple will of $140 for a single person’s will if the State Trustees is appointed executor and $300 if they are not, and $245 per will for a couple if the State Trustees is appointed executor and $540 if they are not. The State Trustees can charge up to 5.5% of the total value of the estate for administering the estate, in addition to administrative expenses, both payable out of the estate.

State Trustees

168 Exhibition Street

Melbourne Vic 3000

Tel: 9667 6444; 1300 138 672 (outside Melbourne)

Web: www.statetrustees.com.au