Wills and estates

A will is a document that deals with the transfer of property when the owner of the property dies. A will must meet certain requirements to be valid, and can be challenged if it is invalid or fails to provide for members of the dead person’s family.

What is a will?

A will is a document that deals with the transfer, transmission or distribution of property and assets (usually land and personal property – referred to as ‘the estate’), upon the death of the owner of the property. The person who makes a will is called a testator. If a person dies without a valid will, they will die ‘intestate’ and their estate will be distributed through the provisions of the Administration and Probate Act 1958 (Vic).

In order for an estate to be distributed under the terms of a will, the person charged with distributing the estate, ‘the executor’, must apply for probate of the will with the Supreme Court of Victoria (the Court).

What are the requirements for a will to be valid?

The Wills Act 1997 (Vic) sets out the formal requirements in order for a will made in Victoria to be valid. The will must:

• be in writing and signed by the testator. If the testator cannot sign it, it can be signed by some other person, so long as the testator tells them to and they are present when the other person signs
• be signed by the testator, who intends to execute a will. The signature does not need to be at the foot of the will, but 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
• have at least two witnesses who saw the testator sign or acknowledge his/her signature attest and sign the will in the presence of the testator. The witnesses do not need to sign the will in the presence of each other.

What are the requirements for a testator to have capacity?

The person making the will must be over 18 (but there are some limited exceptions in the Wills Act) and must be of 'sound mind, memory and understanding'. This means that the person making the will needs to understand that they are making a will and needs to understand the effect of the will.

If a testator lacks the requisite capacity, a statutory will may be made by the Court upon application by any person, while the testator is still alive. The testator must intend the document to operate as a will and the testator must know and approve the contents of the will. Such applications are very rarely successful.

Can a will be challenged on the grounds that it is invalid?

The executor must apply for probate with the Court in order to begin distributing the estate. A will can be challenged on a number of grounds, including:

• the testator lacked the mental capacity to make a will; or
• a later will, which has been validly executed, exists; or the will is invalid because the formalities required under the Wills Act have not been complied with. However, the Court may admit to probate a will that does not comply with required formalities if satisfied that the will was intended to be the last will of the deceased; or
• the will was either revoked or was altered; or
• the testator was unduly influenced when making the will or the will was procured by fraud.

Can a will be challenged on the grounds of family maintenance claim?

Even if a will is valid, it may be possible to challenge how the property is distributed by applying for family maintenance under the Administration and Probate Act.

If you are a person that a testator had a responsibility to make provision for, and their will does not make adequate provision for your proper maintenance and support, you may be able to apply to the Court for an order that greater provision be made for you out of the estate. A person that a testator will have a "responsibility to make provision for" will generally include their spouse or de facto spouse and, depending on the circumstances and their age, any children.

An application for family maintenance provision must be made within six months from the granting of probate. The Court may order that the time limit for making an application be extended, however an application cannot be brought if the estate has been finally distributed – that is, where the executor has completely distributed the property from the estate.

What factors will the Court take into account?

When considering a family maintenance claim, the Court must firstly decide whether or not the deceased had responsibility to make provision for the person who has applied for maintenance. The Court will then need to consider whether or not the distribution of the estate under the will or distribution under intestacy makes adequate provision for the proper maintenance and support of that person. Finally, the Court must also consider the appropriate amount (if any) it may order for the person.

In making a decision, reaching its conclusions, the Court must take into account a number of factors, including:

• any family or other relationship between the deceased person and the applicant, including the nature of the relationship and, where relevant, the length of the relationship
• any obligations or responsibilities of the deceased person to the applicant, any other applicant and the beneficiaries of the estate
• the size and nature of the estate of the deceased person and any charges and liabilities to which the estate is subject
• the financial resources (including earning capacity) and the financial needs of the applicant, of any other applicant and of any beneficiary of the estate at the time of the hearing and for the foreseeable future
• any physical, mental or intellectual disability of any applicant or any beneficiary of the estate and the age of the applicant
• any benefits previously given by the deceased person to any applicant or to any beneficiary
• whether the applicant was being maintained by the deceased person before that person's death either wholly or partly and, where the Court considers it relevant, the extent to which and the basis upon which the deceased had assumed that responsibility
• the liability of any other person to maintain the applicant
• the character and conduct of the applicant or any other person
• any other matter that the Court considers relevant.