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).
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 (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; Order 7 Supreme Court (Administration and Probate) Rules 2004).
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, 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). See: "The distribution of an intestate's estate to next of kin", in Chapter 20*2 Estates, for more details.
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. This person is called an executor (male) or executrix (female). A willmaker should ask a proposed executor if they are willing to act. This person, if willing to act, 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 payment of duties to the government on death (currently there are no state or federal probate or estate duties). The will is not invalidated by the fact that no executor is appointed or it is undated. For more detail, see:Chapter 20*2 Estates.
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.
- 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.
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) (see: "Formal language", below). 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 (see: "Interested witnesses", below). 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 particular 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:
- that a document exists;
- that the document sets out the testamentary wishes of the testator; and
- that the deceased testator must have intended that particular document without anything more, to be his or her last will.
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.
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.
For all wills made after 20 July 1998, a beneficiary must survive the willmaker for 30 days to inherit unless there is a specific contrary intention in the will.
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.
Any person over the age of 18 years may make a will.
A minor may make a will if the court authorises that minor to make a specific will (s.20 WA 1997).
A mentally incapacitated person or a child of very young years can have a will made for them by the court, if the court gives a person making application to the court on behalf of the incapable person permission. (ss.21–28 WA 1997).
Any person making a will must have the mental capacity to know what they are doing (see: "Wills and testamentary capacity" 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.
Where a person is very ill or old and wants to make or change a will, if at all possible the doctor treating that person should swear an affidavit to the effect that the willmaker had sufficient understanding of the circumstances to be able to carry out their intentions, i.e. that the willmaker was not so confused by either the illness or by medication as not to know what was happening. If the willmaker is paralysed or too weak to sign, the will may be signed with a mark, or some other person may sign it on behalf of and at the direction and in the presence of the willmaker (s.7(1)(a) WA 1997). The mental, not the physical, capacity of the willmaker is what is important here.
There is no formal requirement that a legal practitioner must draw up the will, but if the willmaker is in doubt as to any proposed provision, either a solicitor, the State Trustees, or any private trustee company should be consulted as to the wording of the proposed will.
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. If a will disappears in the custody of the willmaker there is a presumption that the will has been revoked by destruction. The executor could also be given a copy of the will in a sealed envelope.
It is a criminal offence to conceal a will or codicil. A person concealing or retaining a will may be liable to pay damages to any person defrauded or any persons claiming under them for any loss sustained through retention or concealment (s.66 A&P Act).
The Supreme Court can now amend wills that do not reflect the intention of the deceased because of a mistake in the will caused by either a typographical error, or because the wording of the will as it is signed does not accurately reflect the true intention of the testator as explained to the person who prepared the will (s.31 WA 1997). This sort of action must be made within six months of the date of the grant of probate of the will (s.31(2) WA 1997).
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.
If the willmaker does not own the asset given under the will at the time of the willmaker's death, the gift is ineffective and is said to have "adeemed".
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).
The will itself cannot be altered by obliteration (rubbing out), interlineation (writing between lines) or by any other alteration after the will has been signed, unless the alteration is signed by the willmaker and the two witnesses in the same way as for the whole will.
All signatures to the alteration must be made as close as possible to the alteration itself; this is usually done in the margin. Where any typing or handwritten mistakes occur when the will is being prepared these should be corrected and the correction initialled by the willmaker and witnesses at the time of attestation. A formal codicil can be executed to make alterations to a will. However, generally it is preferable to execute a new will incorporating the required amendments rather than to have two documents that can be difficult to read together.
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.
A codicil is an addition to an earlier will that also confirms the remaining provisions of that will. It must conform to all the formalities outlined above in relation to the will. A codicil which refers to the "will" in general terms has the effect of confirming the will and any earlier codicil. Codicils are used to make minor changes to the will. If major changes are to be made or where the will is short (say, not over one page long) it is better to make a new will incorporating the addition.
To revoke a will is to cancel its effect. A will can be revoked in any of the four following ways.
- If the willmaker marries, a will made at any time before the marriage is automatically revoked, unless:
- the will is expressed to be made in contemplation of that marriage;
- the terms of the will, or those terms and the surrounding circumstances at the time of making the will, indicate that the willmaker contemplated that he or she would or might marry and intended the gift made in the will to take effect because of that marriage; or
- the will specifically gives land or personal property to the person whom the willmaker subsequently marries. Subsequent divorce or separation will not revive or revalidate any will made prior to the marriage. Effective from 27 April 1995, gifts to divorced spouses are invalidated and their appointment as executors under the will of a divorced spouse is revoked when the divorce becomes absolute. The rest of the will remains operative. The Act, however, still allows a divorced spouse to be a guardian or trustee for infant children of the marriage (s.16A WA 1958; ss.13 & 14 WA 1997). It is important to remember that, under current Victorian law, a will made during the existence of a marriage is still effective after separation or divorce. It is therefore important to remember on the breakup of a marriage that it will be necessary to make a fresh will and perhaps include a new spouse or partner. If you are living in a de facto relationship and want your partner (in the A&P Act called a domestic partner) to inherit some or all of your estate you must make a will. A domestic partner is not included in the scheme of intestacy in the A&P Act unless the willmaker and the domestic partner (which includes a same-sex partner) have lived together for two years immediately prior to the death of the intestate partner, or they have had a child who is under 18 at the death of the willmaker, or the parties have registered their relationship under the Relationships Act 2008 (Vic). If the willmaker also has a spouse, a sliding scale regulates their relative entitlements, based on the length of the domestic relationship. The domestic relationship must be in existence immediately prior to the willmaker's death (s.51A A&P Act).
- A will or codicil to it or any part of that will or codicil may be revoked by a later will or codicil; all formalities as outlined above must be complied with (s.18(b) WA 1958; ss.12 & 16 WA 1997).
- An earlier will may be revoked by inserting a revocation clause in a later will, revoking all earlier wills (s.18(c) WA 1958; s.12(2) WA 1997).
- Burning, tearing or otherwise destroying the will revokes it; this must be done by the willmaker or by some person in the presence and at the direction of the willmaker with the intention that the will should be revoked (s.18(d) WA 1958).
If the will is destroyed as above, and no further will is made, the willmaker would die intestate. An earlier will than the one destroyed can only be revalidated if it is re-signed and newly dated and all other formalities are complied with as for making a will.
The example of a model will following gives examples of some of the things a willmaker might like to put in a will. It is a guide only. Care should be taken when using it. For instance, if a willmaker intends to leave everything to one person, the first three clauses are all that is needed.
A testamentary disposition is a gift that takes effect on death. Most such gifts are made in wills. This phrase is needed to cover those that aren't. A testamentary expense refers to such things as the cost of obtaining probate.
A willmaker should also be aware that the law implies a lot of things into wills. For instance, if a person leaves money to children, the children will not normally get the money until they turn 18. However, the law allows the executor to spend part of a child's share for that child's education or benefit (see: s.37 of the Trustee Act 1958 (Vic)).
A guardianship clause should be inserted (see: clause (4) in "A model will", below) where the willmaker wishes their child or children under the age of 18 years to be looked after by a particular person or persons if the willmaker dies. It should be a person who is likely to outlive the willmaker, i.e. not, for instance, the parents of the willmaker. It gives the person appointed legal control over children until a court decides otherwise (which would only happen if someone challenges the arrangement). In the event of a challenge the Family Court may over-ride the provision of the will as to guardianship of an infant child. It should also be noted that the court has no power to force guardians appointed under a will to act as guardians.
Once a will has been made, it can be taken to a community legal centre, or to a solicitor, to have it checked (see: 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. You can contact the State Trustees for details regarding fees for their services and rates of commission on the value of an interest (solely owned by the willmaker) in a matrimonial home transferred or conveyed to the surviving spouse. (Where the matrimonial home is jointly owned by husband and wife then it passes by law to the survivor and therefore does not attract a commission charge.)
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WILLS :: Last updated: Thu Jul 1st 2010