Information Centre · Wills & Estate Planning
How to Make a Valid Will in Victoria: A Step-by-Step Guide
A practical Victorian guide to making a valid Will under the Wills Act 1997 (Vic) — testamentary capacity, choosing executors and beneficiaries, the residuary estate, testamentary trusts, assets that pass outside the Will, signing and witnessing, electronic and remote execution, alteration, revocation, storage and later updates. General information only — not legal advice.
Key points
- Validity depends on testamentary capacity, a clear intention to make a Will, a compliant document and execution in the presence of two witnesses under the Wills Act 1997 (Vic).
- Identify executors, substitute executors, beneficiaries, substitute beneficiaries and specific gifts clearly, and always include a residue clause.
- Confirm which assets pass under the Will and which do not — superannuation, jointly owned property, trust and company assets, some insurance benefits and some digital assets often pass outside the estate.
- Use independent adult witnesses, avoid beneficiaries and their spouses as witnesses, and follow the current signing procedure precisely.
- Store the signed original safely and tell the executor where it is; do not staple, unstaple or write on the executed Will.
- Review the Will after major personal, family, asset or business changes — marriage, separation, divorce, new relationships, births, deaths, property, business, trust or superannuation changes.
A valid Victorian Will is the single most important estate-planning document most people will make. It sets out who receives what, appoints the person or people who will carry the instructions out, and can protect children, vulnerable beneficiaries and the family home from foreseeable conflict. Validity is technical: Victorian law prescribes who may make a Will, how it must be signed and witnessed, and how it may be altered, revoked or replaced. Failure on any of those points can render the document ineffective, force executors into contested Supreme Court applications, and produce outcomes the deceased plainly did not want. This article explains, in plain but precise language, how to make a valid Will in Victoria under the Wills Act 1997 (Vic), the Administration and Probate Act 1958 (Vic) and the current practice of the Supreme Court of Victoria Probate Office, and how the Will fits with superannuation, jointly owned property, trusts, companies, businesses, digital assets and overseas interests that often pass outside the Will.
This article is a practical guide to preparation and validity. It complements, but does not replace, our awareness article on why every Victorian adult needs a Will, which explains at a high level why a Will matters and what happens without one. For related specialist topics see our guides on testamentary capacity where dementia is a concern, testamentary trusts, blended-family estate planning, mutual and mirror Wills, superannuation and your Will, pet-care provisions, informal and electronic Wills, statutory Wills, executor duties, probate in Victoria, family provision claims and business succession planning. For the firm’s practice see our Wills & Estate Planning service page.
Direct Answer
A valid Victorian Will ordinarily requires a person with testamentary capacity, a clear intention to make a Will, a written or otherwise statutorily compliant document, the testator’s signature made with the intention of giving effect to the Will, and execution in the presence of two witnesses who are present at the same time and who each sign in the testator’s presence. The Will must clearly identify executors (and substitutes), beneficiaries (and substitutes) and the residuary estate. It must be made free of undue influence, with knowledge and approval of its contents. It must take account of the assets that do not ordinarily pass under the Will — superannuation, jointly owned property, trust assets, company assets and some insurance and nominated benefits. The signed original must be stored safely, the executor told where it is, and the Will reviewed after major personal, family, asset or business changes. A document that does not comply with the formalities may sometimes be admitted by the Supreme Court under its dispensing power, but relying on that jurisdiction is expensive, uncertain and slow, and is no substitute for a properly executed Will.
Contents
- Direct answer
- What is a Will?
- What makes a Will legally valid?
- Why formal validity matters
- What happens if there is no valid Will
- What a Will controls
- Assets that may not pass under the Will
- Testamentary capacity
- Knowledge and approval
- Undue influence and vulnerable testators
- Choosing an executor
- Identifying beneficiaries
- Specific gifts
- The residuary estate
- Guardians for minor children
- Testamentary trusts
- Blended families and mirror/mutual Wills
- Superannuation death benefits
- Jointly owned property
- Digital assets and cryptocurrency
- Overseas property and foreign Wills
- Funeral, burial and organ-donation wishes
- Pet-care provisions
- Signing and witnessing requirements
- Interested witnesses
- Electronic Wills and remote witnessing
- Informal Wills and the dispensing power
- Statutory Wills, minors and international Wills
- Altering a signed Will
- Revocation, marriage, separation and divorce
- Safe storage and telling the executor
- Reviewing the Will
- Will kits and online services
- Validity elements reference table
- Estate versus non-estate reference table
- Executor options reference table
- Gift-drafting reference table
- Signing options reference table
- Preparation checklist
- Signing-day checklist
- Review-trigger checklist
- Worked examples
- Common mistakes
- Practical action plan
- When urgent legal advice is needed
- Conclusion
- Frequently asked questions
What is a Will?
A Will is a legal document by which a person — called the testator — directs how their estate is to be distributed on death and appoints the person or people who will carry those directions out. In Victoria the making, alteration and revocation of Wills is governed principally by the Wills Act 1997 (Vic), and the administration of a deceased estate after death is governed by the Administration and Probate Act 1958 (Vic) and the current Supreme Court (Administration and Probate) Rules, together with the practice of the Supreme Court of Victoria Probate Office.
A Will only takes effect on death. Until then it may be altered, revoked or replaced. It does not create rights in beneficiaries during the testator’s lifetime, it does not restrict the testator’s ability to deal with property, and beneficiaries have no entitlement to see it while the testator is alive. After death, the Will becomes the roadmap for the executor’s administration, and, if probate is granted, becomes part of the public court record.
What makes a Will legally valid?
Validity in Victoria has several elements that must all be satisfied. The testator must have testamentary capacity when giving instructions and, ordinarily, when signing. The testator must intend that the document operate as their Will. The document must be in writing (or otherwise satisfy the statutory dispensing power). It must be signed by the testator, or by another person in the testator’s presence and at the testator’s direction, with the intention of giving effect to the Will. The signature must be made or acknowledged by the testator in the presence of two or more witnesses who are present at the same time, and each witness must attest and sign the Will in the presence of the testator. Additional requirements and statutory exceptions apply to interested witnesses, electronic execution, remote witnessing, alterations, codicils, revocation, marriage, separation, divorce, minors and Wills made in contemplation of marriage.
Why formal validity matters
An invalid Will is not a Will. If a document fails the statutory requirements and is not admitted by the Court under its dispensing power, the deceased dies partially or wholly intestate and the estate is distributed under Part IA of the Administration and Probate Act 1958 (Vic). Even where the Court may ultimately admit a non-compliant document, the application is discretionary, evidence-heavy, expensive, and can take months or years. Formal compliance is by far the safest course.
What happens if there is no valid Will
Where there is no valid Will, the estate is distributed under the Victorian intestacy rules in the Administration and Probate Act 1958 (Vic). The distribution follows a fixed statutory formula — the surviving partner (if any) takes a statutory legacy and share, children take defined shares, and in the absence of partner or children, more remote relatives take in a fixed order. The statutory formula rarely matches what a person would have chosen, does not accommodate stepchildren without further steps, gives nothing to friends, charities or unmarried partners in some circumstances, and creates significant risk in blended families. Our general awareness article on why every Victorian adult needs a Will explains the intestacy consequences at a high level; see also our dedicated guide to dying without a Will in Victoria.
What a Will controls
A Will controls the assets that form the deceased’s estate at death — property owned solely by the deceased, personal possessions, the deceased’s share of property held as tenants in common, cash held in accounts in the deceased’s sole name, investments held in the deceased’s sole name, business assets owned personally, and other legal or equitable interests capable of being owned by the deceased. The Will identifies who receives those assets, and appoints the executor who becomes responsible for collecting them, paying liabilities, and distributing the estate.
Assets that may not pass under the Will
Several categories of assets and interests may pass outside the Will, either because ownership passes by operation of law or because a separate governing document determines the destination. These include superannuation death benefits (subject to the fund’s rules and any binding death benefit nomination), jointly owned property held as joint tenants (which passes by survivorship), trust assets (which belong to the trustee and are governed by the trust deed), company assets (which belong to the company, not the shareholder), life insurance with a nominated beneficiary, partnership interests governed by a partnership agreement, and some digital assets governed by platform terms. Effective estate planning requires that all categories be identified and coordinated, not just those addressed by the Will.
Testamentary capacity
Testamentary capacity is the mental capacity required to make a valid Will. The classical test, drawn from Banks v Goodfellow and applied in Victorian authority, requires that at the relevant time the testator understands (i) the nature and effect of making a Will, (ii) the general extent of the property being disposed of, and (iii) the persons who might reasonably expect to benefit; and is free from any disorder of the mind or delusion that would influence the disposition.
Capacity is decision-specific and time-specific. A person may have capacity to make a simple Will but not a complex one. Capacity may fluctuate over time, particularly with age-related conditions. A diagnosis of dementia, mental illness, acquired brain injury or other cognitive condition does not by itself remove capacity. Where capacity is potentially doubtful, the solicitor should take contemporaneous file notes, consider recommending a capacity assessment by a suitably qualified medical practitioner, and, if capacity cannot properly be established, decline to proceed. Where capacity is truly lost, a statutory Will application to the Supreme Court is the specialist alternative. For a fuller treatment where dementia is a concern, see our specialist article on testamentary capacity and dementia.
Knowledge and approval
Knowledge and approval means the testator actually knew and approved of the contents of the Will. It is a separate concept from capacity. Reading the Will, having it read to the testator where reading or vision is difficult, and step-by-step explanation of each clause — particularly the appointment of executors, substitute executors, beneficiaries, substitute beneficiaries, guardians, testamentary trusts and unusual gifts — all support knowledge and approval. Where a person with a substantial interest in the Will has been involved in its preparation, additional care is required and the evidentiary burden is higher.
Language, literacy, hearing or visual impairment, communication disability or the use of an interpreter require additional care. An independent, qualified interpreter (not a family member and not a beneficiary) should be used where required, the reading and explanation should be recorded in the solicitor’s file, and the testator’s confirmation of understanding should be documented.
Undue influence and vulnerable testators
Undue influence in the Wills context means coercion — pressure that overbears the testator’s own will so that the document reflects the pressure and not the testator’s intentions. Lawful persuasion, argument, discussion and even blunt requests do not amount to undue influence. Undue influence must be established on the evidence, and the burden lies on the person alleging it. Suspicion is not enough, but circumstances that raise suspicion increase the level of evidence required to satisfy the Court that the Will reflects the testator’s free intentions.
Prudent practice includes independent appointment of the solicitor, meeting the testator alone to take instructions, excluding beneficiaries and other interested people from the room during instruction and execution, using an independent interpreter where required, documenting the reasons for unusual distributions in a separate file note (not on the face of the Will), and declining to act or delaying signing where validity concerns remain. Where a family member has assisted the testator with transport or communication, that alone is not evidence of undue influence.
Choosing an executor
The executor is the person legally responsible for administering the estate — collecting assets, paying debts and expenses, applying for a grant of probate where required, dealing with the Australian Taxation Office, communicating with beneficiaries, managing any estate litigation, and ultimately distributing the estate. Suitability requires trustworthiness, practical competence, availability, and (in complex estates) financial or business acumen. For a full treatment of the role, see our executor duties guide.
Multiple executors may act jointly, sharing the burden and providing a check on decisions, but multiple executors can also disagree and delay administration. Where multiple executors are appointed, the Will should be clear on how tie-breaks are resolved. A substitute executor should always be appointed to cover the possibility that the primary executor predeceases, becomes incapable, or renounces. Professional executors and trustee companies provide institutional continuity but charge fees; they may be appropriate for large or complex estates. For a fuller treatment of the selection question — suitability, multiple executors, substitutes, conflicts and costs — see our companion guide on how to choose a suitable executor in Victoria.
Identifying beneficiaries
Beneficiaries should be identified by full legal name and relationship, with sufficient particularity to identify them at the date of death. Common problems include incorrect names (particularly for charities), failure to define a class (for example, “my grandchildren” where children born after the Will may or may not be intended to be included), failure to address stepchildren, and failure to provide for substitute beneficiaries. Survivorship periods (for example, a beneficiary must survive the testator by 30 days) address the risk of common accidents and rapid successive deaths.
Specific gifts
Specific gifts — a particular property, chattel, sum of money, or item of jewellery — must be drafted carefully. If the specific asset is no longer owned at death, the gift ordinarily fails (a doctrine known as ademption). Cash gifts should specify whether they are indexed. Personal possessions may be dealt with through a memorandum of wishes (which is not binding) or by specific gift. Gifts of business interests, shares in a private company, or units in a unit trust require particular care and coordination with governing documents such as shareholders’ agreements and buy-sell arrangements.
The residuary estate
A residue clause disposes of everything not otherwise gifted. Every Will should contain one. Without a residue clause, undisposed property passes on partial intestacy under the Administration and Probate Act 1958 (Vic), which may produce unintended and unfavourable outcomes. Residuary gifts should be expressed as percentages or shares (which self-adjust as the estate value changes), with substitute residuary beneficiaries in case the primary residuary beneficiaries fail.
Guardians for minor children
Where the testator has minor children, the Will may express wishes about who should have care of the children on the death of the surviving parent. Guardianship in the family-law sense is governed by the Family Law Act 1975 (Cth), and the paramount consideration in any post-death parenting dispute is the child’s best interests. A guardian nomination in a Will is nonetheless important evidence and a practical starting point for any post-death arrangement. Trusts for minors ordinarily hold the child’s share until an age of entitlement (commonly 21 or 25), with the trustee authorised to apply capital and income for maintenance, education and advancement during minority.
Testamentary trusts
A testamentary trust is a trust created by a Will that comes into existence on death. Testamentary trusts can offer asset protection, flexibility of income and capital distribution, protection against beneficiary immaturity, family-law and creditor risk mitigation, and (in certain cases) taxation advantages. They are not appropriate for every estate, and detailed legal, taxation and financial advice is required before deciding whether to include one. For more see our testamentary-trusts guide and our testamentary-trust taxation guide.
Blended families and mirror/mutual Wills
Blended families are the single most common source of estate disputes in Victoria. Balancing provision for a surviving spouse or partner with provision for children from a previous relationship requires structural planning — for example, right-of- residence arrangements, life-interest trusts, testamentary trusts, or coordinated superannuation planning. Mirror Wills (identical Wills made by a couple, each revocable at any time) provide symmetry but no security; mutual Wills (Wills supported by a binding agreement not to revoke) can create binding obligations but are heavily litigated. See our blended-families guide and mutual and mirror Wills guide.
Superannuation death benefits
Superannuation is not automatically an estate asset. On death, the trustee of the superannuation fund generally has a discretion to pay the death benefit to dependants (as defined by the SIS legislation) or the legal personal representative, subject to any valid binding death benefit nomination and the fund’s rules. A death benefit only forms part of the estate — and passes under the Will — if it is paid to the estate. Binding nominations are typically time-limited (often three years), must comply with statutory form requirements, and can lapse. Self-managed superannuation funds add additional complexity because the trustee is typically controlled by family members. Coordinated advice is essential. See our superannuation and your Will guide.
Jointly owned property
Property held as joint tenants passes by survivorship to the surviving joint tenant on death, outside the Will. Property held as tenants in common passes under the Will (or on intestacy) as to the deceased’s fractional interest. Whether property is held as joint tenants or tenants in common is determined by the terms of the title, not by informal assumption. The title should be checked before drafting. Where the desired outcome is that a fractional interest passes under the Will, severance of the joint tenancy may be required.
Digital assets and cryptocurrency
Digital assets include cryptocurrency, non-fungible tokens, online business accounts, domain names, digital photograph and video libraries, cloud storage, social-media accounts, and intellectual property in digital form. Whether these can be dealt with by Will depends on whether they are legally capable of being owned and transferred, and on platform terms of service. Access is the key practical problem — private keys, passwords and two-factor authentication devices may be required. A secure inventory maintained outside the Will (for example in a password manager with an emergency-access facility) is the common solution.
Overseas property and foreign Wills
Overseas property may be governed by a different legal system. Forced-heirship rules apply in a number of civil-law jurisdictions and can override the provisions of an Australian Will. Some jurisdictions require a Will in the local language, executed in a particular way or before particular officials. International Wills, executed in accordance with the Uniform International Wills provisions, can help where those provisions are recognised, but not every jurisdiction recognises them. Cross-border estate planning requires foreign-law advice; drafting a single Australian Will to deal with substantial foreign assets is rarely the right answer.
Funeral, burial and organ-donation wishes
Funeral, burial, cremation and organ-donation wishes may be included in a Will but are not, as a rule, legally binding on the executor in Victoria. The executor generally has the practical authority to arrange the funeral. Expressing wishes clearly and communicating them during life to family and to the executor reduces the risk of dispute. Organ-donation wishes should also be recorded on the Australian Organ Donor Register.
Pet-care provisions
Pets are treated as property. A Will can leave a pet to a nominated carer, together with a modest cash gift to assist with ongoing care, and can include a substitute carer in case the primary carer is unwilling or unable. See our dedicated pet-care in your Will guide.
Signing and witnessing requirements
The Wills Act 1997 (Vic) prescribes the formal signing and witnessing requirements. The testator must sign the Will (or have another person sign at the testator’s direction and in the testator’s presence) with the intention of executing the Will. The signature is generally at the foot of the document, and while a signature elsewhere may still take effect if intention is established, unusual signature placement invites argument. Two witnesses must be present at the same time when the testator signs or acknowledges the signature, and each witness must then attest and sign in the presence of the testator. Every page should ordinarily be initialled by the testator and witnesses. Nothing should be stapled, unstapled, hole-punched or attached after execution.
Interested witnesses
Historically, a gift to a person (or their spouse) who witnessed the Will was void. In Victoria the statutory position now permits admission of the Will and preservation of the gift in defined circumstances — for example, where there are enough other non-interested witnesses to satisfy the formal requirements without counting the interested witness, where all beneficiaries adversely affected by the gift with capacity consent, or where the Court is satisfied that the testator knew and approved of the gift and it was given voluntarily. The rule is technical and easily misapplied. Beneficiaries, spouses of beneficiaries and (in practice) executors who are also beneficiaries should not witness.
Electronic Wills and remote witnessing
Victoria adopted temporary remote-witnessing and electronic-execution arrangements during the COVID-19 emergency and has since dealt with those arrangements under specific statutory provisions. The current position — including whether audio-visual witnessing remains available for Wills, what identification and presence requirements apply, what must be endorsed on the document, and what records must be retained — should be verified with current advice before signing. Even where electronic execution is technically permitted, the statutory procedure must be followed precisely; a typed name at the bottom of an email or a scanned signature copied into a document does not ordinarily satisfy the Wills Act, and reliance on such a document usually depends on the Court’s discretionary dispensing power. Ordinary in-person execution in the simultaneous physical presence of two witnesses remains the safest option in most cases.
Informal Wills and the dispensing power
The Wills Act 1997 (Vic) contains a dispensing power that permits the Supreme Court to admit a document that has not been executed in accordance with the formal requirements if the Court is satisfied that the person intended the document to be their Will. Documents that have been admitted in reported Victorian cases have included unsigned drafts, handwritten notes, and in some cases electronic documents. Admission is discretionary and requires supporting evidence. Deliberate reliance on the dispensing power is not a substitute for a properly executed Will — the process is expensive, uncertain and slow. See our informal and electronic Wills guide.
Statutory Wills, minors and international Wills
The Supreme Court of Victoria may make a Will for a person who lacks testamentary capacity, under the statutory Will provisions in the Wills Act. Applications are specialist and require the Court to be satisfied that the proposed Will reflects a Will that could reasonably have been made by the person if they had capacity. Minors ordinarily cannot make a Will, subject to defined exceptions such as married minors, minors in contemplation of marriage, and minors authorised by the Court. International Wills executed under the Uniform International Wills provisions have their own execution procedure and can be useful where the testator has assets in multiple jurisdictions that recognise the Convention. See our statutory Wills guide.
Altering a signed Will
A signed Will should not be altered by handwriting on the executed document. Alterations made after execution are not effective unless they are themselves signed and witnessed in the manner prescribed by the Wills Act. The safe course is to make either a codicil (executed with the same formalities as a Will) or a fresh Will that expressly revokes the previous Will. For anything other than a small, discrete change (such as a substitute executor), a fresh Will is usually clearer and less error-prone than a codicil.
Revocation, marriage, separation and divorce
A Will may be revoked by making a later Will or codicil that expressly revokes previous Wills, by destroying the Will with the intention of revoking it (physical destruction alone is not enough — the intention must accompany the act), by writing on the Will in the manner prescribed by the Wills Act, or by operation of law. Under Victorian legislation, marriage generally revokes an existing Will subject to statutory exceptions including Wills made in contemplation of the marriage. Divorce ordinarily revokes gifts to and appointments of the former spouse in an existing Will, subject to statutory exceptions where the Will expresses a contrary intention. Separation without divorce does not, by itself, revoke any part of the Will and does not remove appointments or gifts to the estranged spouse or partner — leaving an old Will in place after separation is a common source of unintended outcomes. Prompt review after any relationship change is essential.
Safe storage and telling the executor
The signed original Will should be stored securely and its location communicated to the executor. Common options include safe custody with the solicitor who prepared the Will, a private safe or safe-deposit facility, or the State Trustees Will bank. Copies are not automatically admitted in place of a lost original — where the original is lost, presumptions of revocation and specific evidence about its history must be dealt with on the probate application. The executor should be told where the original is stored and how to access it; keeping the location secret defeats the point of making the Will.
Reviewing the Will
A Will is a snapshot of the testator’s intentions and circumstances at the date of signing. Life changes routinely make a Will out of date. Every Will should be reviewed at least every few years and whenever there is a significant life change — marriage, separation, divorce or a new de facto relationship, birth or adoption of children, death or incapacity of a beneficiary or executor, purchase or sale of property, receipt of a substantial inheritance, a change in business or trust structures, an overseas move, a significant change in health, or a change in charitable intentions.
Will kits and online services
A Will kit or online Will service can produce a legally valid Will if the finished document satisfies the requirements of the Wills Act 1997 (Vic). In practice, kits and templates regularly produce Wills with no residue clause, poorly identified beneficiaries, ambiguous or contradictory gifts, no substitution, no consideration of superannuation or joint property, no thought to family-provision risk, and defective execution. Apparent simplicity is deceptive: many disputes arise from “simple” estates where a kit was used. Legal advice pays for itself many times over the first time a defect is avoided.
Validity elements reference table
| Validity element | Practical question | Supporting evidence or precaution | Common risk |
|---|---|---|---|
| Testamentary capacity | Does the testator understand the nature and effect of the Will, the general extent of property and the persons who may have claims? | Solicitor interview alone; contemporaneous file notes; medical capacity assessment where indicated | Diagnosis assumed to remove capacity; incapacity assumed from age; no contemporaneous evidence |
| Intention | Does the testator intend this document to operate as their Will? | Instructions confirmed and recorded; document identified as a Will; testator confirms intention at execution | Draft or note treated as a Will; ambiguity about intention |
| Knowledge and approval | Does the testator know and approve of the contents? | Reading (or having read) the Will; clause-by-clause explanation; opportunity to ask questions; independent interpreter where required | Substantial gift to the person who arranged the Will; language or literacy barrier |
| Absence of undue influence | Are the instructions free of coercion? | Solicitor meets testator alone; beneficiaries excluded from instruction and execution; documented reasons for unusual gifts | Dominant relative present throughout; sudden change favouring one person |
| Compliant document form | Is the document in writing (or otherwise statutorily compliant)? | Typed, printed Will on paper; every page present; no missing pages | Reliance on unsigned notes; missing pages; multiple inconsistent drafts |
| Signature | Signed by the testator (or by another at direction) with intention to execute? | Signature at foot; witnesses observe signing; testator initials each page | Signature elsewhere without explanation; unclear signing sequence |
| Witnesses | Two witnesses present at the same time who each sign in the testator’s presence? | Both witnesses observe the testator sign; each signs before the testator leaves the room | Witness signed later; only one witness; witness not physically present |
| Interested witnesses | Is any witness a beneficiary (or the spouse of a beneficiary)? | Use independent adult witnesses who are not beneficiaries or spouses of beneficiaries | Gift to interested witness potentially at risk unless a statutory exception is established |
| Electronic execution | If electronic or remote signing is used, is the exact statutory procedure followed? | Real-time visual observation; endorsements on each counterpart; retention of recordings and records | Reliance on typed name in email; scanned signature copied into a document |
| Alterations | Are any post-signing changes properly executed? | Codicil executed with same formalities, or fresh Will | Handwritten changes on the executed Will |
| Revocation | Is any earlier Will properly revoked? | Express revocation clause in the new Will; earlier original destroyed with intention | Multiple Wills in circulation with no clear revocation |
| Storage of the original | Is the signed original stored securely and its location known to the executor? | Solicitor safe custody or secure private storage; executor informed | Original lost, damaged, or its location unknown |
Estate versus non-estate reference table
The following table summarises common asset categories and their usual treatment. It is a general guide only; each asset must be assessed on its actual documents and circumstances.
| Asset or interest | Usually controlled by the Will? | Main determining factor | Planning action |
|---|---|---|---|
| Solely owned bank account | Usually | Ownership at death | Identify and include within residue or specific gift |
| Property held as tenant in common | Usually | Deceased’s fractional interest | Check title and draft gift carefully |
| Property held as joint tenants | Usually not directly | Survivorship | Review ownership structure and intended outcome |
| Superannuation | Not automatically | Fund rules and trustee decision or nomination | Review nominations and fund deed |
| Life insurance | Depends | Policy ownership and nomination | Check policy terms |
| Family trust assets | Usually not directly | Trustee and appointor/control structure | Coordinate trust succession |
| Company assets | No, unless owned personally | Company ownership | Deal with shares and control, not company property |
| Digital assets | Depends | Ownership, platform terms and access | Prepare inventory and authority plan |
| Overseas assets | Depends | Foreign law and ownership | Obtain cross-border advice |
Executor options reference table
| Option | Advantages | Risks or disadvantages | When it may suit |
|---|---|---|---|
| Spouse or partner | Usually knows the estate; aligned interests | Possible incapacity or grief; conflicts in blended families | Simple estates; long, stable partnerships |
| Adult child | Continuity; usually available | Sibling conflict; family-provision tension | Adult children with capacity and confidence |
| Sibling or friend | Independence from beneficiaries | May be same age or generation as testator; availability | Where children are unwilling or unavailable |
| Multiple family executors | Shared burden; checks and balances | Disagreement; delay; complexity of signing | Where balance between beneficiaries is important |
| Professional adviser | Skill and independence | Fees; potential conflict with own practice | Complex or contested estates; where family conflict is likely |
| Trustee company | Institutional continuity; specialist administration | Fees; less personal touch | Large or long-running estates; no suitable individual |
| Substitute executor | Continuity if primary cannot act | None — always include one | Every Will |
Gift-drafting reference table
| Gift type | Drafting issue | Common failure | Protective approach |
|---|---|---|---|
| Specific property | Precise identification; what happens if sold before death | Ademption where asset no longer owned | Substitute gift or reference to sale proceeds where appropriate |
| Cash amount | Indexation and adequacy over time | Gift eroded by inflation or insufficient residue | Percentage of residue; indexed amount; regular review |
| Percentage of residue | Total percentages equal 100; substitute provision | Percentages that do not add up; no substitute | Check arithmetic; name substitutes; use per stirpes where appropriate |
| Class gift | Definition of the class; timing | Later-born grandchildren omitted or included by accident | Define the class expressly and by reference to the date of death or vesting |
| Charity gift | Correct legal name of the charity; ABN | Wrong or superseded organisation name | Verify with the charity; include ABN; general charitable substitute |
| Gift to minor | Age of vesting; trust powers | No trust structure; premature vesting | Testamentary trust with maintenance, education and advancement powers |
| Gift of business interest | Coordination with shareholders’ agreement and buy-sell arrangements | Gift inconsistent with governing documents | Coordinated review of company constitution, shareholder agreement and buy-sell |
| Personal possessions | Practical distribution | Non-binding memoranda mistaken for legally binding gifts | Specific gifts in the Will or clear reference to a non-binding memorandum |
| Pet-care gift | Care of pet and modest cash gift | No substitute carer; pet gifted to person unable to care for it | Primary and substitute carers; modest cash gift for care |
| Digital asset | Ownership; platform terms; access | Assets unreachable at death; keys lost | Secure inventory outside the Will; nominated technical helper |
| Substitute gift | What happens if the primary beneficiary predeceases | Gift lapses to residue or on partial intestacy | Name substitute beneficiaries and use survivorship periods |
Signing options reference table
The following table summarises current signing options and should be verified with current advice before use. Not all methods carry the same risk profile.
| Execution method | Core requirements | Evidence retained | Main risk |
|---|---|---|---|
| Traditional in-person signing | Testator signs in the simultaneous physical presence of two witnesses; each witness signs in the testator’s presence | Original signed Will; contemporaneous solicitor file notes | Missing witness; witness not present at the time |
| Electronic signing | Statutory procedure for electronic execution followed precisely; identity, presence and endorsement requirements met | Signed electronic record; audit trail; endorsements | Procedure not followed; reliance on informal digital signature |
| Remote audio-visual witnessing | Real-time visual observation; identity confirmed; endorsements on each counterpart; retention of records | Signed counterparts; recording where retained; solicitor file notes | Non-compliance with procedure; document rejected on probate application |
| Signing by direction where current law permits | Another person signs in the testator’s presence and at the testator’s direction; two witnesses present | Original signed Will; solicitor file notes explaining reason for signing by direction | Direction not clearly established; capacity not documented |
| International Will execution | Compliance with the Uniform International Wills provisions; authorised person present; certificate attached | International Will with certificate | Executed for a jurisdiction that does not recognise the Convention |
Preparation checklist
- Full legal name, address and relationship status
- Prior Wills and codicils, including their location
- Citizenship and domicile issues, particularly for foreign assets
- Family members, dependants and estranged relatives
- Blended-family relationships and stepchildren
- Assets, liabilities and property-title details
- Superannuation funds and death-benefit nominations
- Life-insurance policies and beneficiary nominations
- Trusts, companies, partnerships and business agreements
- Overseas assets and digital assets, including cryptocurrency
- Proposed primary and substitute executors
- Primary and substitute beneficiaries and specific gifts
- Charitable gifts, verified against the correct legal name of the charity
- Guardian wishes for minor children
- Testamentary-trust objectives
- Funeral, organ-donation and pet-care arrangements
- Family-provision risks and reasons for any unusual distribution
- Capacity or vulnerability concerns and the need for medical or interpreter assistance
- Tax and financial-advice issues, particularly around superannuation and business interests
Signing-day checklist
- Final document version checked against instructions
- Testator understands the contents and confirms understanding
- Capacity concerns addressed and, where appropriate, contemporaneous medical or file-note evidence obtained
- Independent instructions confirmed; beneficiaries not present during signing
- Correct signing method selected and prepared
- Two appropriate, independent witnesses present at the same time
- Signature made with testamentary intention
- Both witnesses sign in the testator’s presence
- Every page initialled by the testator and the witnesses
- No unexplained blank spaces or crossings-out
- No handwritten alterations made after execution
- Electronic-process records retained where applicable
- Original stored safely with clear provenance
- Executor informed of the location of the original
- Copies clearly marked as copies
Review-trigger checklist
- Marriage
- Separation or divorce
- Commencement of a new de facto relationship
- Birth or adoption of a child
- Death of a beneficiary
- Death or incapacity of an executor
- Estrangement or reconciliation with a beneficiary
- Purchase or sale of a substantial asset (especially property)
- Major inheritance or windfall
- Business acquisition, sale or restructure
- Creation of, or change to, a trust structure
- Superannuation change (fund, balance or nomination)
- Move interstate or overseas
- Significant tax change
- Serious illness or change in capacity
- Change in guardian wishes for minor children
- Change in charitable intentions
- Change in family-provision risk profile
Worked examples
The following examples are hypothetical and illustrative only. They are not actual cases and do not guarantee any particular outcome. Individual advice must be obtained on any specific circumstances.
- First Will for a single adult. A 32-year-old with a home unit, a superannuation balance and a modest share portfolio. Priorities include a residue clause, choice of executor from a sibling or parent, a substitute executor, and coordination of the superannuation binding nomination with the estate plan.
- Married couple with young children.Mirror Wills leaving the estate to the surviving spouse, with a testamentary trust for the children if both die together, appointing a substitute guardian and testamentary trustee, and coordinated superannuation nominations.
- Blended family. A second marriage where each spouse has children from a prior relationship. Options include life-interest trusts, right-of-residence arrangements, testamentary trusts, or coordinated superannuation and property planning. Family-provision risk is carefully assessed.
- Child from a previous relationship.A testator with a child from a previous relationship not living with the family. Deliberate provision (or a documented decision about non-provision, with reasons in a separate file note) reduces the risk of a family-provision claim.
- Adult child with disability. A protective trust for the disabled beneficiary, coordinated with any Special Disability Trust rules, government-support entitlements and the choice of trustee.
- Beneficiary receiving a testamentary trust. Legal, tax and financial advice considered before including the trust, with careful drafting of trustee powers, beneficiary class and appointor role.
- Business owner. Coordination of the Will with the shareholders’ agreement, buy-sell arrangements, key-person insurance and succession plan for the business. See our business-succession guide.
- Family trust controller.Succession of trusteeship, directorship of the trustee company, and appointor role planned separately from the Will, because the trust assets are not the testator’s personal property.
- Jointly owned home. Title checked to confirm joint tenancy or tenancy in common; where a fractional interest is intended to pass under the Will, severance considered.
- Property held as tenant in common.Specific gift of the deceased’s share, with consideration of any co-ownership agreements or options in favour of the surviving owner.
- Substantial superannuation outside the estate. Death-benefit nominations reviewed, fund deed considered, and the impact of paying the benefit to the estate (rather than a dependant) assessed — including tax consequences and family-provision exposure.
- Specific property sold before death.Ademption avoided by drafting that anticipates sale, or by substitute gifts referring to proceeds or replacement property.
- Beneficiary dies before the testator.Substitute gift takes effect; without it, gift lapses to residue or, where statutory anti-lapse applies, passes to the deceased beneficiary’s descendants.
- Executor becomes incapable.Substitute executor takes on the role, avoiding the need for an administration application to the Supreme Court.
- Older person with fluctuating capacity.Instructions taken during a period of capacity, medical evidence and contemporaneous file notes retained, execution scheduled at a time of best function.
- Beneficiary present during instructions.Meeting suspended; instructions retaken privately with the testator alone; reasons for unusual distributions recorded in a separate file note.
- Electronic Will executed remotely.Current statutory procedure followed precisely; recordings and endorsements retained; residual risk on probate application acknowledged.
- Handwritten changes after signing.Changes not effective; codicil or fresh Will executed to give effect to the intended change.
- Marriage after making a Will.Effect of marriage on the existing Will considered against the statutory provisions and any contemplation-of-marriage clause; fresh Will executed where appropriate.
- Separation without divorce.Existing Will reviewed; where continued provision for the estranged spouse is not intended, new Will executed; consequences of incomplete revocation explained.
- Overseas property.Coordinated Australian and foreign advice obtained; where necessary, a separate foreign Will prepared, with careful drafting to avoid accidental revocation of the Australian Will.
- Cryptocurrency and digital records.Secure inventory maintained outside the Will; access plan for private keys and two-factor authentication; nominated technical helper identified.
- Charitable gift with incorrect organisation name. Charity verified, ABN recorded, and a general charitable substitute clause included to preserve the gift if the charity ceases to exist or amalgamates.
- Unsigned draft discovered after death. Dispensing-power application considered by the executor; cost, delay and evidentiary difficulty weighed against likelihood of admission.
Common mistakes
- Assuming every asset passes under the Will
- Failing to include a residue clause
- Failing to nominate substitute beneficiaries
- Choosing an unsuitable executor
- Failing to nominate a substitute executor
- Using incorrect beneficiary names
- Vague or ambiguous gifts
- Gifting an asset no longer owned at death
- Ignoring blended-family risks
- Ignoring superannuation death-benefit nominations
- Ignoring jointly owned property
- Treating trust assets as personal assets
- Inadequate provision for minors
- Using an interested witness without advice
- Witnesses not present at the same time
- Signing the wrong version
- Making handwritten changes after signing
- Losing the original Will
- Storing the Will where it cannot be accessed
- Failing to review after marriage or divorce
- Allowing a beneficiary to control instructions
- Assuming diagnosis equals incapacity
- Using a foreign or interstate template
- Relying on a Will kit for a complex estate
- Assuming an electronic file is automatically valid
- Failing to coordinate business succession
Practical action plan
- Identify all family and dependency relationships, including estranged relatives
- Locate prior Wills and estate-planning documents
- Prepare a complete asset and liability inventory
- Distinguish estate assets from non-estate assets
- Review property ownership (joint tenancy, tenancy in common, sole)
- Review superannuation and insurance nominations
- Identify trusts, companies and business interests, and the applicable governing documents
- Choose primary and substitute executors
- Identify primary and substitute beneficiaries and specific gifts
- Plan the residuary estate and any testamentary trusts
- Consider minors, guardians and long-term protective provisions
- Assess family-provision risk and consider documented reasons for any unusual distribution
- Address capacity or vulnerability concerns and, where necessary, obtain medical or interpreter assistance
- Obtain independent legal, tax or financial advice on complex issues
- Approve the final document carefully and confirm understanding
- Follow the current execution procedure exactly
- Store the original safely and record its location
- Tell the executor where the original is stored
- Review the Will after major personal, family, asset or business changes
When urgent legal advice is needed
Urgent legal advice is warranted where the testator is seriously ill or in decline, where capacity is doubtful or fluctuating, where a family member is attempting to control the instruction process, where a Will is being prepared or replaced in circumstances that would attract suspicion, where a blended family, business succession, family trust, substantial superannuation or overseas assets are involved, where a person has recently married, separated or divorced, or where the testator wishes to exclude a person who might otherwise expect to benefit. For general advice about making, updating or reviewing a Will see our Wills & Estate Planning service page or the profile of our reviewer, Julian McIntyre.
Conclusion
A valid Victorian Will requires capacity, intention, a compliant document, careful signing and witnessing, and thoughtful identification of executors, beneficiaries and the residuary estate. It requires careful attention to assets that pass outside the Will — superannuation, jointly owned property, trust and company assets, some insurance benefits and some digital assets. It must be stored safely, its location communicated to the executor, and reviewed after major personal, family, asset or business changes. Will kits and templates can produce a valid Will in the simplest cases but regularly produce defects that only appear after death. The Supreme Court’s dispensing power provides a discretionary safety net for documents that do not meet the formal requirements, but reliance on it is expensive, uncertain and slow. A properly prepared Victorian Will, executed in accordance with the Wills Act 1997 (Vic), and reviewed regularly, is the safest and most effective foundation for any estate plan. This article is general information about Victorian law as at 22 May 2026 and is not legal advice. Advice from a Victorian solicitor tailored to the actual circumstances should be obtained before any Will is prepared, altered, replaced or revoked.
Frequently Asked Questions
What makes a Will valid in Victoria?
A Will is generally valid in Victoria if the testator has testamentary capacity, intends the document to operate as a Will, and the document complies with the formal requirements of the Wills Act 1997 (Vic) — in short, the Will is in writing, signed by the testator (or by another person in the testator’s presence and at the testator’s direction) with the intention of executing it as a Will, and the signature is made or acknowledged in the presence of two or more witnesses who are present at the same time, each of whom attests and signs the Will in the presence of the testator. Additional requirements apply to electronic Wills, remote witnessing, informal Wills admitted under the Court’s dispensing power, statutory Wills and Wills made by minors, and specific rules apply to interested witnesses and to the effect of marriage and divorce.
Does a Will have to be in writing?
Ordinarily yes. The formal requirements in the Wills Act 1997 (Vic) contemplate a written document. The Court has a limited statutory dispensing power to admit a document (which can include an electronic document in appropriate circumstances) that has not been executed in accordance with the formal requirements if the Court is satisfied the person intended the document to be their Will. Reliance on informal-Will admission is not a substitute for making a formally compliant Will; it is discretionary, evidence-dependent, costly and slow.
Can a Will be handwritten?
Yes. A handwritten Will (often called a holographic Will) can be valid in Victoria if it satisfies the formal requirements — in writing, signed by the testator with testamentary intention and properly witnessed. Handwritten Wills are not automatically invalid. They are, however, more likely to contain drafting errors, ambiguity, missing gifts, incorrect names, and execution problems, and are more likely to be challenged. Legal advice is strongly recommended.
Can I make an electronic Will?
Electronic Wills and remote witnessing under Victorian law are technical, and the precise position should be verified with current advice before signing. Victoria adopted temporary remote-witnessing arrangements during the COVID-19 emergency and has since dealt with electronic execution and audio-visual witnessing under specific statutory provisions. Even where electronic execution is permitted, the exact procedure — including who must be present, what must be recorded, and what must be endorsed on the document — must be followed precisely. A simple typed name at the bottom of an email does not ordinarily satisfy the Wills Act, and reliance on such a document usually depends on the Court’s discretionary dispensing power.
Can a Will be witnessed remotely?
Remote witnessing may be permitted only in the specific circumstances and following the exact procedure prescribed under current Victorian law. Ordinary in-person execution in the simultaneous physical presence of two witnesses remains the safest course. Where remote or audio-visual execution is used, the required real-time visual observation, endorsements on each counterpart, retention of records and any additional procedural steps must be complied with precisely — non-compliance is a real risk and forces reliance on the dispensing power.
How many witnesses are required?
Two witnesses are required. They must be present at the same time when the testator signs, or acknowledges the signature already made, and each witness must then sign the Will in the presence of the testator. The presence requirement is central and departures from it are a common source of dispute.
Who can witness a Will?
A witness must be a person capable of seeing the testator sign or acknowledge the signature and of attesting the Will. There is no requirement that a witness be a lawyer, justice of the peace or notary. However, using neutral, competent, easily-locatable adult witnesses who are not beneficiaries (or the spouse of a beneficiary) and who are not the testator’s appointed executor is the prudent practice.
Can a beneficiary witness a Will?
A beneficiary (or the spouse of a beneficiary at the time of execution) can legally witness a Will, but the gift to that beneficiary may be affected. Under Victorian legislation, gifts to interested witnesses (or their spouses) are subject to specific statutory provisions that can invalidate the gift unless one of the statutory exceptions applies — for example, the Will can still be admitted, and the gift preserved, where there are enough other non-interested witnesses, where all beneficiaries with capacity consent, or where the Court is satisfied the testator knew and approved of the gift and it was given voluntarily. Because the rule is technical and easily missed, beneficiaries and their spouses should not be used as witnesses.
Can an executor witness a Will?
Yes. Merely being appointed as executor does not disqualify a person from witnessing the Will and does not affect the executor’s appointment. If the executor is also a beneficiary, the interested-witness rules described above apply to the gift, not to the executorship. Even so, using independent adult witnesses who are not executors avoids unnecessary argument.
Do witnesses need to read the Will?
No. Witnesses do not need to read the Will or know its contents. They must, however, be able to see the testator sign (or acknowledge the signature) and understand that they are witnessing the testator’s signature on a document that the testator is executing as a Will. Witnesses are attesting to the execution of the document, not verifying its contents.
Must the Will be notarised?
No. There is no requirement in Victoria for a Will to be notarised. Signing and witnessing in accordance with the Wills Act 1997 (Vic) is sufficient. Notarisation may be relevant to Wills intended to operate in other jurisdictions, and international Wills executed under the Uniform International Wills provisions have their own execution procedure, but ordinary Victorian Wills do not require a notary.
What is testamentary capacity?
Testamentary capacity is the mental capacity required to make a valid Will. Drawing on the long-standing common-law test in Banks v Goodfellow and Victorian authority, the testator must, at the relevant time, understand the nature and effect of a Will, understand the general extent of the property being disposed of, be aware of the persons who might reasonably expect to benefit, and be free from any disorder of the mind or delusion that would influence the disposition. Capacity is decision-specific and time-specific.
Does dementia automatically prevent making a Will?
No. A diagnosis of dementia or another cognitive condition does not by itself remove capacity. Capacity is assessed at the time the Will is signed and by reference to the actual understanding of the person, not the diagnosis. Many people with early-stage dementia retain capacity to make simple Wills, and capacity can fluctuate. Careful assessment, contemporaneous solicitor file notes and, where indicated, capacity assessment by a suitably qualified doctor are prudent.
Can a person with fluctuating capacity make a Will?
Potentially yes. A Will may be executed during a period of capacity even where capacity fluctuates. The key is that the testator has capacity at the time of giving instructions and, at the time of execution, understands and approves of the Will. Where capacity is doubtful or fluctuating, contemporaneous medical evidence and detailed solicitor file notes are important; in some cases a statutory Will application to the Supreme Court is more appropriate.
What is knowledge and approval?
Knowledge and approval means the testator actually knew and approved of the contents of the Will. It is a separate requirement from capacity. Reading the Will, having it read to the testator, explanation by the solicitor of key clauses, an opportunity to ask questions and confirmation before signing all support knowledge and approval. Any circumstance that arouses suspicion — for example a substantial gift to the person who arranged the Will — increases the evidentiary burden.
What is undue influence?
In the Wills context, undue influence means coercion — pressure that overbears the testator’s will so that the document does not reflect the testator’s own intentions. Lawful persuasion, argument, appeals to affection or duty and even blunt requests do not amount to undue influence. Undue influence must be proved, and mere opportunity or motive is not enough. Independent instructions, private meetings with the solicitor and careful file notes assist in reducing later argument.
Can a family member attend the appointment?
A family member can attend the initial meeting for logistical support but should not be present when instructions are given or when the Will is executed. Solicitors ordinarily insist on meeting privately with the testator to take instructions, to reduce the risk of undue-influence and knowledge-and-approval challenges. Where language or communication assistance is required, an independent interpreter is preferred over a family member.
Who should I appoint as executor?
The executor should be a trustworthy adult with the practical ability to administer an estate — including handling paperwork, dealing with the Supreme Court probate office, communicating with beneficiaries, managing assets and, where necessary, engaging professional advisers. Common choices include a spouse or partner, adult children, siblings, close friends, professional advisers or a trustee company. Suitability depends on the size and complexity of the estate, the family dynamics and the executor’s willingness and availability.
Can I appoint more than one executor?
Yes. Multiple executors may be appointed to act jointly or, in some cases, jointly and severally. Multiple executors can share the burden and provide a check on decisions, but they can also disagree, delay administration and complicate signing. If multiple executors are appointed, the Will should be clear on how disputes are resolved and on the appointment of substitutes.
Can an executor also be a beneficiary?
Yes. It is common for a spouse, partner or adult child to be both executor and beneficiary. Being an executor does not confer any beneficial entitlement to the estate. Being a beneficiary does not disqualify a person from acting as executor, although the appointment must still be considered in light of family dynamics and family-provision risk.
What happens if the executor dies?
If a sole executor dies before the testator, or before completing administration, and no substitute is appointed, the Court may appoint an administrator under the Administration and Probate Act 1958 (Vic). To avoid this uncertainty, most Wills appoint one or more substitute executors who take on the role if the primary executor is unwilling, unable or has died.
What is the residuary estate?
The residuary estate is everything not otherwise disposed of by specific gift. A residue clause is essential — without one, any property not covered by a specific gift may pass on partial intestacy under the Administration and Probate Act 1958 (Vic), potentially to unintended beneficiaries. A well-drafted residue clause typically divides the residue by percentage or share and names substitute residuary beneficiaries.
What happens if a beneficiary dies first?
If a beneficiary dies before the testator and the Will does not include a substitute gift, the gift may lapse and fall into residue, or in some cases pass to the beneficiary’s descendants under statutory anti-lapse provisions. Careful drafting typically anticipates this by naming substitute beneficiaries and by using survivorship periods.
Can I appoint a guardian for my children?
Yes. A Will may express the testator’s wishes about who should have care of minor children. Under the Family Law Act 1975 (Cth), parenting responsibility is not disposed of by Will in the same way as property, and the paramount consideration in any dispute is the child’s best interests. A guardian nomination in a Will is nonetheless important evidence and a practical starting point for any post-death parenting arrangement.
Does my Will control superannuation?
Not automatically. Superannuation is held by a trustee under a trust deed. On death, the trustee generally has a discretion to pay the death benefit to dependants or the legal personal representative, subject to any valid binding death benefit nomination and the fund’s rules. A death benefit only forms part of the estate — and passes under the Will — if it is paid to the estate. Coordinated advice on superannuation nominations, fund rules and Will drafting is important.
Does my Will control jointly owned property?
Property held as joint tenants ordinarily passes by survivorship to the surviving joint tenant on death, outside the Will. Property held as tenants in common passes under the Will (or on intestacy). Whether property is held as joint tenants or tenants in common depends on the title. Understanding the ownership structure before drafting is essential; severance or change of ownership may be considered where appropriate.
Can I leave trust assets in my Will?
Generally no, not directly. Assets held by a family or discretionary trust belong to the trustee (subject to the trust) and are not the testator’s personal property. Control of the trust — through the trustee company’s shareholding and directorship and the appointor role — is what typically needs to be planned, not the trust assets themselves. Trust succession is a specialist area requiring separate advice.
Can I leave digital assets?
Digital assets — cryptocurrency wallets, domain names, digital business assets, cloud accounts and intellectual property — can be dealt with in a Will where they are legally capable of being owned and transferred. Access is the key practical problem: private keys, passwords, two-factor devices and platform terms may all need to be planned separately. A secure inventory maintained outside the Will is often used to record access details while keeping them out of the public probate record.
Can I include funeral wishes?
Yes. Funeral, burial, cremation and organ-donation wishes may be included. However, funeral wishes in a Victorian Will are not strictly legally binding on the executor; the executor generally has the practical authority to arrange the funeral. Expressing clear wishes and communicating them to family and the executor during life reduces the risk of later dispute.
Can I provide for pets?
Yes. A Will can leave a pet to a nominated carer, together with a modest cash gift for the pet’s ongoing care, and can include practical arrangements for transfer of the pet. Pets are treated as property in law and cannot themselves inherit. See our dedicated article on pet-care provisions for more detail.
Does marriage revoke a Will?
Under the Wills Act 1997 (Vic), marriage generally revokes an existing Will subject to specific statutory exceptions — including where the Will was made in contemplation of the marriage or in contemplation of marriage generally. The effect must be checked carefully against the Will’s actual wording and the statutory provisions, and after marriage the Will should be reviewed and, where necessary, re-executed.
Does separation revoke a Will?
No. Separation without divorce does not automatically revoke a Will and does not automatically remove appointments of, or gifts to, a former spouse. Continuing to rely on an old Will after separation often produces unintended outcomes. Reviewing and, where appropriate, revoking or replacing the Will after separation is important.
What happens to a Will after divorce?
Under Victorian legislation, a divorce order after the making of a Will generally revokes gifts to and appointments of the former spouse, subject to statutory exceptions where the Will discloses a contrary intention. The remainder of the Will ordinarily continues to operate. The precise effect must be checked, and a new Will after divorce is prudent.
Can I alter a signed Will by handwriting on it?
No. Handwritten alterations made to a Will after it has been signed will not ordinarily take effect unless they are separately signed and witnessed in accordance with the Wills Act. Making a codicil, or a new Will, is the safer course. Handwriting on an executed Will can create ambiguity and may prejudice the operation of the original Will.
What is a codicil?
A codicil is a supplementary document that amends an existing Will. It must itself be executed with the same formalities as a Will. Codicils can be useful for a small, discrete change (for example changing an executor) but for anything substantial, a fresh Will is usually clearer and less error-prone.
How can a Will be revoked?
A Will can be revoked by making a later Will or codicil that expressly revokes previous Wills, by destroying the Will with the intention of revoking it, by writing on the Will in the manner prescribed by the Wills Act, or by operation of law (for example, on marriage subject to the statutory exceptions, or by divorce for the parts affecting the former spouse). Revocation should always be handled deliberately, not by accident.
What is an informal Will?
An informal Will is a document that does not satisfy the formal execution requirements but which the Court, on application, may admit as a Will under its dispensing power in the Wills Act 1997 (Vic) if satisfied the person intended the document to be their Will. Examples that have been admitted include unsigned drafts, notes, and in some cases electronic documents. Admission is discretionary and requires evidence; the process is expensive, uncertain and slow, and is not a substitute for a properly executed Will.
What is a statutory Will?
A statutory Will is a Will made by an order of the Supreme Court of Victoria under the Wills Act for a person who lacks testamentary capacity. It is a specialist application, brought where a Will is required (for example because the intestacy outcome is manifestly inappropriate or where capacity is lost after a life change) and where the Court is satisfied the proposed Will reflects a Will that could reasonably have been made by the person if they had capacity.
Where should the original Will be stored?
The original Will should be stored securely and its location communicated to the executor. Common options include solicitor safe custody, a private safe or safe-deposit facility, or the State Trustees Will bank. A misplaced or destroyed original creates significant difficulty on death, and copies are not automatically admitted in place of a lost original. Do not staple, unstaple, hole-punch or attach anything to the executed Will.
How often should a Will be reviewed?
A Will should be reviewed at least every few years and whenever there is a significant change — marriage, separation, divorce or a new de facto relationship, birth or adoption of children, death of a beneficiary or executor, a substantial change in assets, purchase or sale of property, a change in business or trust structures, an overseas move or a change in health. Life changes are the most common reason Wills fail to reflect intentions.
Is a Will kit legally valid?
A Will kit can produce a legally valid Will if the finished document satisfies the requirements of the Wills Act 1997 (Vic). In practice, Will kits regularly produce Wills with drafting errors — no residue clause, poorly identified gifts, incorrect names, unclear substitution, no consideration of superannuation or joint assets, no thought to family-provision risk and defective execution. For anything beyond the simplest estate, a Will kit is a false economy.
When should I use a lawyer?
Legal advice is particularly important where there is any complexity or vulnerability — blended families, minor or dependent children, substantial or non-liquid assets, business or trust interests, significant superannuation, overseas assets or beneficiaries, potential family-provision risk, guardianship of children, disability or age-related capacity concerns, unusual distribution, or where a person is helping another to make or update a Will. A lawyer can also advise on whether related documents (enduring powers of attorney, medical treatment decision maker appointments, superannuation nominations) should be updated at the same time.
Wills & Estate Planning
Making or updating a Will in Victoria? Talk to a Wills & Estate Planning lawyer.
We prepare and update Wills for Victorians of all circumstances — first Wills, updated Wills for blended families, testamentary trusts, business owners, coordinated superannuation planning and complex or cross-border estates.