How to Make a Valid Will in Victoria

Testamentary capacity

The maker of a Will (the testator) must have testamentary capacity at the time the Will is made. The stated elements are that the testator understands the nature of making a Will and its effect, understands the extent of the property being disposed of, is able to comprehend and appreciate the claims to which they ought to give effect, and is not affected by any disorder of the mind that perverts the sense of right or prevents the exercise of the natural faculties. Capacity is decision-specific and time-specific. It is presumed unless the circumstances suggest otherwise; where any doubt exists, a contemporaneous opinion from a treating practitioner or a specialist may be obtained and the file recorded accordingly.

Capacity is distinct from knowledge and approval (the testator's understanding of, and assent to, the specific terms of the Will), from undue influence (coercion overbearing the testator's will) and from fraud or forgery. Where suspicious circumstances surround the preparation of a Will — for example, where a person who substantially benefits took an active part in the preparation — additional evidence may be required to establish that the Will represents the testator's true intentions.

Section 7: the execution and witnessing requirements

Under section 7 of the Wills Act 1997 (Vic), a Will is validly executed if it is in writing and signed by the testator (or by another person at the testator's direction and in the testator's presence), if the testator makes or acknowledges the signature in the presence of two or more witnesses present at the same time, and if at least two of those witnesses attest and sign the Will in the presence of the testator (though not necessarily in the presence of each other). A witness need not know the contents of the Will.

Practical points to check at signing include: that the testator has read the Will (or had it read to them and has confirmed it); that the two witnesses are together and can see the testator sign or acknowledge the signature; that the witnesses then sign in the testator's presence; and that the signatures appear on each page in the manner required by the firm's practice and the document's structure. Where any doubt exists about a page or an initialling error, the process is repeated cleanly on a fresh execution page rather than adjusted on the face of the document.

Section 11: beneficial dispositions to attesting witnesses

Section 11 of the Wills Act 1997 (Vic) provides that a person who witnesses a Will, and the spouse or domestic partner of that person at the time of witnessing, is not disqualified from taking a benefit under the Will. The beneficial disposition is not void by reason of the attestation. Even so, having a beneficiary — or a beneficiary's spouse or domestic partner — witness the Will remains a source of avoidable dispute, because allegations of undue influence and issues of knowledge and approval can still be raised at probate. The safer course is to choose witnesses who are not beneficiaries and who are not the spouse or domestic partner of a beneficiary.

Section 9: informal Wills

Section 9 of the Wills Act 1997 (Vic) gives the Supreme Court a discretion to admit to probate a document (or an alteration to a document) that has not been executed in accordance with section 7, if the Court is satisfied that the person intended the document to be their Will, an alteration or a revocation. The discretion depends on the evidence of intention and on the document itself. Section 9 relief is not a substitute for proper execution; it is a mechanism the Court may use in appropriate cases. Where the person has lacked capacity, statutory Will provisions provide a separate mechanism by which the Court may authorise a Will for that person.

Beneficiaries and gifts

A Will may identify specific gifts (of specified assets or sums), pecuniary gifts (of sums of money), and a gift of the residue (of what is left after specific and pecuniary gifts and after debts, expenses and taxes are paid). Substitute gifts address what is to occur if a named beneficiary predeceases the testator or fails to take. Trusts for minor beneficiaries can be created by the Will, with a trustee, an appropriate age of vesting and appropriate powers of investment and advancement. A residue clause is a common structural element but is not, of itself, a mandatory rule of Victorian law; the drafting must simply produce an intended and complete disposition of the estate.

Estate and non-estate assets

A Will can only dispose of assets legally capable of testamentary disposition. Property held as joint tenants generally passes by survivorship rather than under the Will; property held as tenants in common passes under the Will. Superannuation is governed by the fund's trust deed, the SIS Act framework and any valid binding or non-binding nomination in force at the date of death; it is paid to the estate only where it is directed to the estate. Life insurance is governed by the policy and any nomination. Assets held in a trust or in a company are governed by the trust deed or the company's constitution and by any survivorship, transmission and shareholders' arrangements. Estate planning that addresses only the Will, without regard to non-estate assets, may not produce the intended outcome.

Guardianship wishes, funeral and organ donation

A Will can express the testator's wishes about the care of minor children after death, but a testamentary expression does not, of itself, displace the parental responsibility of a surviving parent or override parenting orders made under the Family Law Act 1975 (Cth). Funeral, burial and organ-donation wishes may be recorded in a Will, but are not, of themselves, legally binding on those who arrange the funeral or on hospitals; separate practical steps (such as informing family and registering as an organ donor) are appropriate in addition to the Will.

Revocation, alterations and codicils

A Will may be revoked expressly by a subsequent Will or instrument, by physical destruction with the intention of revoking, or by operation of law (including marriage or divorce as the Act provides). Alterations must be executed with the same formalities as the original Will or admitted under section 9. Codicils can amend a Will. Where a Will has been amended more than once, it can be clearer to make a new Will than to rely on multiple codicils.

Remote and electronic execution

Wills in Victoria are ordinarily executed in accordance with section 7, with the testator and two witnesses present together. Sections 8A to 8D of the Wills Act 1997 (Vic) provide an audio-visual link procedure for the execution and witnessing of a Will where the statutory conditions are met. Section 8A sets out the remote procedure, including the statements and checks required by section 8A(7) and the requirement that at least one witness be a "special witness" as defined in section 3 of the Act. Section 8B identifies which document is the valid Will made under the remote procedure. Section 8C concerns only an optional audio-visual recording of the signing and witnessing: all parties must consent to the recording being made, and whether or not a recording is made does not affect the validity of the Will or the availability of the remote procedure. Section 8D provides that the remote procedure operates in addition to, and does not limit, other duties and obligations arising under statute or the general law. The specific statutory conditions should be confirmed before any remote process is adopted.

Do-it-yourself Wills

Will kits and online products exist and can be used by people who choose to do so. Common issues that emerge with unadvised Wills include: execution and witnessing errors that require section 9 applications; ambiguous drafting that requires construction proceedings; failure to address non-estate assets; failure to consider claims under Part IV of the Administration and Probate Act 1958 (Vic); and failure to consider tax and asset-protection issues where those arise. Whether advice is appropriate in a given case is a matter for the individual on the facts.

Reviewing an existing Will

Life events that can warrant a review of a Will include marriage, entering or leaving a de facto relationship, separation or divorce, the birth or adoption of children or grandchildren, the death of an executor, trustee, guardian or beneficiary, a substantial change in assets or liabilities, a change in the family (including blended-family arrangements) and a change in capacity or health. There is no statutory interval at which a Will must be reviewed; the appropriate cadence is a matter for the individual.

Marriage and its effect on an existing Will

Under section 13 of the Wills Act 1997 (Vic), a Will is revoked by the marriage of the testator, subject to the exceptions in section 13(2). Those exceptions include a disposition to the person to whom the testator is married at the time of the testator's death, an appointment as executor, trustee, advisory trustee or guardian of that person, and a Will that is expressed to be made in contemplation of the marriage (whether or not that marriage is particularised). A testator intending to marry, or who has recently married, should consider whether their existing Will remains effective in light of section 13.

Divorce and its effect on an existing Will

Under section 14 of the Wills Act 1997 (Vic), a divorce or the annulment of a marriage revokes a beneficial disposition to the testator's former spouse and any appointment of the former spouse as executor, trustee, advisory trustee or guardian, subject to the section's exceptions and to any contrary intention appearing in the Will. Divorce does not, by itself, revoke the whole Will. Separation without divorce does not have the same statutory effect; a Will made before separation continues to operate according to its terms until it is revoked or replaced.

Lapse, ademption and abatement

Where a beneficiary predeceases the testator, the gift ordinarily lapses and falls into the residue, subject to section 45 of the Wills Act 1997 (Vic), which — in defined circumstances and subject to a contrary intention appearing in the Will — preserves a disposition to a person who is issue of the testator by treating the disposition as taking effect in favour of that person's issue who survive the testator. Ademption occurs where the subject of a specific gift is no longer part of the estate at death; the gift then fails, subject to any contrary intention in the Will and to statutory exceptions (including those relating to property dealt with by an attorney or administrator). Abatement is the reduction of gifts where the estate is insufficient to satisfy all of them; the order in which gifts abate is governed by the general law and by the terms of the Will.

Testamentary trusts

A testamentary trust is a trust that comes into existence on the testator's death, established by the terms of the Will. Testamentary discretionary trusts, protective trusts, life-interest trusts and special disability trusts each serve different purposes. Testamentary discretionary trusts are sometimes used with a view to distributing income among a defined class, protecting capital from creditors or a family-law claim against a beneficiary, or providing for vulnerable beneficiaries; whether any such outcome is achieved in a given case depends on the drafting, the identity and conduct of the trustee and appointor, the operation of the applicable tax legislation, the beneficiary's own circumstances and (for means-tested entitlements such as the Age Pension, Disability Support Pension and NDIS) the current social-security and NDIS rules. Special disability trusts have their own detailed statutory requirements under Commonwealth legislation and do not arise merely because a trust is described as such. Whether a testamentary trust is appropriate depends on the size and composition of the estate, the beneficiaries' circumstances and the testator's objectives; the potential benefits should be weighed against the additional complexity and ongoing administration costs, and specific tax and social-security advice should be obtained.

Part IV of the Administration and Probate Act 1958 (Vic)

An eligible person may apply to the Court under Part IV of the Administration and Probate Act 1958 (Vic) for a family provision order on the basis that the distribution effected by the Will (or by intestacy) does not make adequate provision for the applicant's proper maintenance and support. The categories of eligible person are set out in section 90, and certain categories (broadly, those in paragraphs (h) to (k) of the definition of eligible person, including stepchildren, grandchildren and registered caring partners and members of the deceased's household in defined circumstances) must also satisfy the statutory dependency requirement to bring a claim. The Court's assessment is undertaken in accordance with section 91 and section 91A, and takes into account the deceased's testamentary wishes, the applicant's relationship with, and any obligations owed by, the deceased, the applicant's financial resources and needs, any physical, mental or intellectual disability, contributions made by the applicant, the size and nature of the estate, competing claims and any other matter the Court considers relevant. Testators with potential Part IV exposure — for example, estranged adult children, dependent stepchildren or a former spouse who was being supported at death — should obtain advice about the available options for managing that exposure, which may include documentary statements of reasons, lifetime arrangements and coordinated non-estate planning.

Foreign assets and interstate Wills

Where the testator owns assets in another Australian jurisdiction or overseas, the private international law rules ordinarily applied in Australia distinguish between immovable property (broadly, interests in land), for which the law of the place where the property is located generally governs succession, and movable property (such as bank accounts and personal effects), for which the law of the testator's domicile at death generally governs succession. The formal validity of a Will made in one jurisdiction is separately addressed by the recognition provisions in Part 2 Division 6 of the Wills Act 1997 (Vic), which set out the circumstances in which a Will is treated as properly executed. In some cases separate Wills for different jurisdictions are used to avoid conflicts and simplify administration; in others, a single Will drafted with an awareness of the applicable rules is sufficient. The appropriate approach depends on the nature and location of the assets, the applicable law and the testator's overall plan, and cross-border advice is prudent.

Digital assets and personal records

Digital assets — email accounts, social-media accounts, cloud-stored photographs, cryptocurrency, domain names, online business accounts and similar — raise practical and legal questions that traditional Will drafting did not have to address. The extent to which any particular digital asset can be dealt with by Will depends on whether the account is transferable under the service provider's terms and on the applicable law. Practical steps — maintaining an inventory, recording access information securely and separately from the Will, and drafting the Will to authorise the executor to deal with digital assets so far as the law permits — may be adopted.

Choosing an executor and trustee

The executor is responsible for administering the estate: obtaining a grant of probate where required, calling in the assets, paying debts and expenses, and distributing the estate in accordance with the Will. The role requires trustworthiness, availability and, where the estate is complex, some capacity to engage with professional advisers. An executor may also be a trustee of any trusts arising under the Will. Testators can appoint co-executors, substitute executors and professional executors. The appointment of a professional executor may attract remuneration and the operation of section 65 of the Administration and Probate Act 1958 (Vic) with respect to commission.

Care of minor children and pets

A Will can record the testator's wishes about who should care for minor children after the testator's death. A testamentary expression of that kind does not, of itself, displace the parental responsibility of a surviving parent, and does not override parenting orders made under the Family Law Act 1975 (Cth) or protective orders made under Victorian child-protection legislation. Testators should discuss the intended arrangement with the proposed carer in advance. Provision for pets can be made by a specific gift of the animal, coupled with a monetary gift to the intended carer for the animal's maintenance; direct trusts for the benefit of an animal are limited by the general law and are ordinarily framed as trust arrangements for the carer.

Storage and locating the Will after death

After execution, the original Will should be stored securely and its location made known to the executor. Options include storage with the drafting solicitor, in the testator's own secure records or in a safe deposit facility. Multiple originals should not be created, as revocation of one may create doubt about the others. After death, the location of the Will can be investigated by contacting the deceased's usual solicitor, the Registry of Wills at State Trustees or through enquiries with the deceased's bank and family records. If the original cannot be located and there is evidence that it was last in the testator's possession, a presumption of revocation by destruction may arise; probate of a copy is available in appropriate cases but is evidentiary and more demanding.

Statement of reasons and evidentiary file

Where a Will departs from the pattern that would be expected — for example, by excluding a child or by preferring one beneficiary over others — a contemporaneous statement of reasons prepared with the Will can help explain the decision if the Will is later challenged. Statements of reasons are not conclusive and can themselves become evidence in the proceedings, but a careful, factual and non-inflammatory statement can be valuable. The drafting solicitor's file — including notes of instructions, capacity observations and copies of any medical evidence obtained — is ordinarily preserved and may be produced under subpoena in later proceedings.

Coordinating the Will with powers of attorney and medical appointments

A Will operates only on and after death. During lifetime, a person's decision-making arrangements are governed by different statutes: an enduring power of attorney (financial and personal matters) made under the Powers of Attorney Act 2014 (Vic); a supportive attorney appointment under that Act; and a medical treatment decision maker appointment or advance care directive under the Medical Treatment Planning and Decisions Act 2016 (Vic). These appointments do not form part of the Will, and are not affected by later revocation of the Will. Making a Will without considering these appointments can leave gaps in the plan: for example, an attorney may deal with an asset during lifetime in a way that adeems a specific gift in the Will, and specific statutory provisions (in the Powers of Attorney Act 2014 (Vic) and the Wills Act 1997 (Vic)) address the position where that occurs. Coordinating the Will and the enduring appointments is usually part of a considered estate plan.

Superannuation, life insurance and interests in trusts and companies interact with the Will in different ways. A binding death benefit nomination made in accordance with the fund's trust deed and the SIS Act framework directs the trustee to pay the death benefit to the nominated beneficiary (or the estate) where the nomination is valid and in force at death; a non-binding nomination is a factor the trustee considers but does not determine the outcome. Life insurance is dealt with according to the policy and any nomination made in accordance with the policy. Interests in family trusts and private companies are dealt with according to the trust deed and the company's constitution, and by any shareholders' agreement, buy-sell arrangement or transmission provisions. A Will that is drafted in isolation from these arrangements can produce results the testator did not intend; a coordinated plan addresses the Will, the enduring appointments, superannuation and other non-estate assets together.

Related information

For related topics, see our guides to executor duties in Victoria, how long probate takes in Victoria and powers of attorney in Victoria. Our wills and estate planning practice can assist with preparing or reviewing a Will and coordinating the wider plan.

Frequently asked questions