Making a will is an important step towards ensuring that your assets are protected and your wishes are fulfilled after you pass away. Whether you own property or have savings, a legally binding contract can help make the distribution process clear and avoid any disputes.
In Victoria, there are certain legal requirements that must be met for a will to be considered valid. These may include rules regarding testamentary capacity or signing. Understanding these requirements and how to make a valid will in Victoria can help you prepare a will that reflects your intentions and provides certainty for people who matter the most.
This guide will walk you through the essential requirements for a valid will in Victoria and the steps involved in preparing one.
What Makes A Will Legally Valid In Victoria
In order to be considered legal in Victoria, a will must follow a few formal requirements. These are:
- A person must be 18 years of age or older to make a will. Exceptions may apply in special circumstances.
- You must have testamentary capacity, i.e., you need to be of sound mind while making the will.
- The will must be signed by the testator. A testator is the person making the will, and they must sign it in the presence of two witnesses.
- The will must be in writing. It can be handwritten or typed, but oral wills are generally considered invalid.
- You must sign the will in the presence of two witnesses.
- The witnesses also need to sign the will in the presence of the testator, and to avoid any confusion, it is advised to have the signatures of the witnesses right below that of the testator.
- The date of the will should be mentioned on the document.
Meeting these requirements helps establish the validity of the will and reduces the risk of disputes and unnecessary questions.
Also Read – When is Probate Required in QLD? Avoiding the Supreme Court When You Can
Step-By-Step Guide To Making A Will In Victoria
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- Identify Your Assets & Liabilities: The first and foremost step is to make a list of your assets and liabilities. These may include savings, investments, vehicles, personal possessions, and property. It is important that you keep this list up to date and be aware of what passes under the will.
- Decide Your Beneficiary: Decide who will inherit your assets and specify what each person will receive. You can choose between your friends, family, or charitable organisations. Also, consider adding alternative beneficiaries in case someone dies before you.
- Choose An Executor: An executor is in charge of administering your estate as per your will. Their duties include paying debts, identifying assets, handling probate when required, and distributing inheritance. Choose someone you can trust and who is capable of managing these responsibilities.
- Include Specific Instructions: Consider whether you need to include provisions for minor children, particular gifts, or other personal wishes. If you have children, you may also nominate a guardian, although the appointment’s legal effect depends on the circumstances.
- Prepare & Review Your Will: After finalising the details, seek legal advice and then write your will. Your will should include your name and address. Also, your will should clearly mention your executor and your beneficiaries.
- Sign & Store You need to have two witnesses present at the time of your will signing. Date the document and store the original securely, ensuring your executor knows where to find it.
Common Mistakes To Avoid
- Using contradictory instructions or vague language can lead to confusion about how your assets should be distributed. Clearly identify the beneficiaries and make sure each person knows what they are getting.
- Making errors while signing the will, such as having one witness instead of two and re-stapling pages, can question the validity of the will.
- Making handwritten changes to the will after signing may not be legally effective. Changes are bound to occur, but crossing out a beneficiary’s name or adding a new asset by writing can cause disputes.
- Failing to update your will after major life changes can lead to unintended outcomes. Marriage generally revokes an existing will unless an exception applies, while divorce generally revokes gifts to a former spouse and their appointment as executor. Separation alone does not automatically have the same effect.
- Superannuation benefits, trust assets and jointly owned property should not be considered as part of all your assets. They should be dealt with separately.
- Overlooking potential claimants, such as a spouse, child or dependant, can increase the risk of a family provision claim if they believe they have not received adequate provision from your estate.
It is important to be thorough and precise while drafting your will. Moreover, seeking legal assistance can help make this process easier and less time-consuming.
Also Read – How Long Does Probate Take in Victoria? A Realistic Timeline for Executors
Final Thoughts
Planning your estate today can save your loved ones from unnecessary confusion and complications in the future. A well-executed will helps communicate your wishes, identify your beneficiaries, and provide clear guidance for managing your estate. By following Victoria’s legal requirements and reviewing your will whenever your circumstances change, you can reduce the likelihood of avoidable disputes and delays.
If you need assistance understanding probate, drafting your will, letters of administration, or other estate-related documents, the Australian Probate Centre can guide you through the relevant steps. Our team of lawyers in Victoria can help you navigate the complexities of estate planning.
We will explain all the available options, help you understand the importance of a will, and draft a plan according to your needs. Contact us to get a 15-minute free consultation and start your estate planning today.
