A Will is a legal document that outlines how your assets and possessions will be distributed after your death. It allows you to appoint an executor (a person or institution responsible for carrying out your wishes), nominate guardians for any minor children, and provide instructions for funeral arrangements or other specific requests. A properly drafted Will helps ensure your estate is managed according to your wishes and can prevent potential disputes among your beneficiaries.

A Will provides clarity and certainty about how your estate will be handled. Without one, your estate will be distributed according to the rules of intestacy under the Administration and Probate Act 1958 (Vic), which may not align with your intentions. For example, if you have a partner but are not married or in a registered domestic partnership, they may not automatically inherit your estate without a Will. Additionally, having a Will can reduce stress for your loved ones, as it provides clear guidance on your wishes during a difficult time.

In Victoria, anyone over the age of 18 who has testamentary capacity can make a Will. Testamentary capacity means the person understands:

The nature and purpose of a Will.

The extent of their assets and liabilities.

The people who may have a claim on their estate (e.g., family members, dependents). People under 18 can only make a Will in exceptional circumstances, such as if they are married or have court approval.

A solicitor can:

- Advise you on legal requirements and potential complexities, such as blended families or tax implications.

- Draft a clear and legally sound Will tailored to your circumstances.

- Ensure your Will complies with all formalities under Victorian law.

- Assist in estate planning to minimize taxes and protect assets. Their expertise helps avoid common mistakes and ensures your wishes are legally enforceable.

If you die intestate (without a Will), the Administration and Probate Act 1958 (Vic) determines how your estate is distributed. Typically, this means:

If you have a spouse or domestic partner but no children, they will inherit your entire estate.

If you have a spouse or domestic partner and children, your partner receives a "statutory legacy" (a set amount indexed annually) and a share of the remainder. The rest is divided among your children.

If you have no partner or children, your estate may go to other relatives, such as parents, siblings, or nieces and nephews. If no eligible relatives can be found, your estate will pass to the state government. This process may not reflect your preferences and could exclude important people in your life.

Yes, you can write your own Will, but it must comply with strict formal requirements under the Wills Act 1997 (Vic) to be valid. These include:

The Will must be in writing (typed or handwritten).

You must sign the Will in the presence of two witnesses, both of whom must also sign it in your presence.

The witnesses must not be beneficiaries or their spouses, as this could void their inheritance. While writing your own Will may seem cost-effective, it can lead to errors or ambiguity. For example, unclear language or non-compliance with legal formalities could result in part or all of the Will being invalid. It is strongly recommended to seek professional legal advice to ensure your Will is legally valid and reflects your wishes accurately.

Yes, you can update or change your Will at any time, as long as you have testamentary capacity. This is often necessary if your circumstances change, such as:

Marriage or entering a domestic partnership (which can revoke an earlier Will unless specifically stated otherwise).

Divorce or ending a domestic partnership.

The birth or adoption of children or grandchildren.

A significant change in your financial situation. Changes can be made by drafting a new Will or creating a legally binding document called a codicil, which amends specific parts of the existing Will. It is generally better to create a new Will to avoid confusion.

An executor is the person or organization responsible for managing your estate and ensuring your wishes are carried out after your death. This includes collecting and valuing assets, paying debts and taxes, and distributing the estate to beneficiaries. When choosing an executor, consider:

Their willingness and ability to perform the role.

Their organizational and financial management skills.

Their relationship with your beneficiaries to avoid potential conflicts. You can appoint a trusted individual, a professional (such as a solicitor), or an organization (such as a trustee company). It’s also advisable to appoint a backup executor in case your primary choice cannot act.

Yes, some assets are not covered by your Will and pass directly to others. These include:

Assets held jointly with another person (e.g., a jointly owned property or joint bank account), which pass automatically to the surviving owner.

Superannuation benefits, unless the superannuation fund allows you to nominate your estate as the beneficiary.

Life insurance policies with a nominated beneficiary. It’s important to consider these when planning your estate and seek advice on how to align them with your overall intentions.

For a Will to be valid in Victoria, it must meet these requirements:

(1) The Will must be in writing.

(2) The testator (the person making the Will) must sign it in the presence of two adult witnesses.

(3) The two witnesses must sign the Will in the presence of the testator.

(4) The testator must have testamentary capacity. Failure to meet these requirements may result in the Will being invalid or challenged.

Yes, a Will can be contested under certain circumstances, including:

If a person believes they have not been adequately provided for and were eligible to make a family provision claim under the Administration and Probate Act 1958 (Vic) (e.g., spouses, children, or dependents).

Allegations that the Will was made under duress, fraud, or undue influence.

Claims that the testator lacked testamentary capacity when making the Will. To minimize the risk of disputes, it is essential to seek legal advice when drafting your Will, particularly if you are excluding someone who might have a legitimate claim.

Contesting a will involves legally challenging its validity or the distribution outlined within it, with common grounds for contesting including a lack of mental capacity when the will was made, undue influence, inadequate provisions for family, or improper execution of the will. 

Claims must be made within six months of the Grant of Probate and the process can be complex, requiring solid legal grounds and evidence. Silk Legal are experienced in will dispute and can help you understand your rights and the likelihood of a successful challenge.

Probate is a legal process that confirms the validity of a will and grants the executor the authority to administer the estate. Not all wills require probate, typically just estates including significant assets (often but not always when exceeding $50,000), or where the will is contested will require executors to obtain a Grant of Probate. 

A Family Provision Claim is a legal challenge made when a person believes they were not adequately provided for in a deceased’s will. Eligible claimants include spouses, children, de facto partners, and sometimes dependants or those who were financially reliant on the deceased. For a better understanding of your options and guidance on making your claim.

As well as drafting and regularly updating your legally sound Will, you can protect your estate from disputes by considering the potential claims of all dependants, communicating your intentions to your beneficiaries, and keeping comprehensive records. Silk Legal offers estate planning services for individuals and families with high-value estates looking to minimise ambiguity and conflict. Book a confidential discussion today to safeguard your assets and ensure your wishes are fulfilled.