Wills

Who this service is for

Anyone who has assets or has responsibility for others — parents, homeowners, business owners, retirees, people entering a new relationship, and those with elderly parents to whom they may leave something. Making a will is not restricted by age; it becomes necessary the moment you have anything to leave or anyone whose interests you want to protect.

What a will contains

1. Executors and alternates. Who will administer the estate and step in if the primary executor cannot act.
2. Beneficiaries. Who receives what — outright, in shares, or in trust.
3. Specific gifts. Particular items or amounts left to particular people.
4. Residue. Where everything else goes once specific gifts and expenses are paid.
5. Guardianship. Preferred guardians for children under 18.
6. Substitution. What happens if a beneficiary predeceases you.
7. Administrative powers. The executor's powers to sell, retain, invest and distribute.

Formalities under Victorian law

Under the Wills Act 1997 (Vic), a valid will is usually made in writing, signed by the will-maker at the foot of the document and witnessed by two independent adult witnesses who are present at the same time and each sign in the will-maker's presence. Beneficiaries and their spouses should not be witnesses; doing so can invalidate the gift to them, not the whole will.

Common drafting problems in home-made wills

• No residuary clause — leaving some of the estate to be distributed under the intestacy rules.
• Gifts to a class ("my grandchildren") without saying what happens if none survive.
• Contradictory clauses added by hand after signing.
• Executor and beneficiary the same person, without alternates.
• Reference to superannuation or jointly-owned property as if it were part of the estate when it may not be.
• Witnesses who are beneficiaries or the spouse of a beneficiary.

Special situations

Blended families

Where you have children from a previous relationship and a current spouse, a simple will leaving everything to the spouse can result in the children being disinherited if the spouse later remarries or changes their own will. Life-interest trusts, testamentary trusts and binding financial agreements alongside the will may all be relevant.

Business interests

Shares in a family company or units in a family trust do not always pass under a will as one might expect. Shareholders' agreements, constitutions and trust deeds override or condition what the will can do. The will and those documents need to be read together.

Property held as joint tenants

A jointly held family home passes to the surviving joint tenant by survivorship, not under the will. If you want the property to pass under the will, the ownership must be converted to tenants in common.

Reviewing an existing will

Life events that should trigger a review include marriage, entering into a new de facto relationship, separation, divorce, the birth of a child or grandchild, a death in the family, buying or selling a significant asset, starting or exiting a business, and receiving an inheritance. Marriage generally revokes an earlier will unless the will was made in contemplation of that marriage.

Storage

We hold original signed wills in safe custody at no additional charge and maintain a register that can be searched by your executors when the time comes. Executors should know where the original is stored; photocopies cannot be admitted to probate without a court order.

Formal requirements for a valid Victorian will

A will made in Victoria must generally be in writing, signed by the will-maker, and signed in the presence of two adult witnesses who are together with the will-maker at the same time and who then sign the will. Additional signing rules apply to blind will-makers and to witnesses who take a benefit under the will. Documents that do not meet the formal requirements may still be admitted to probate as an informal will in defined circumstances, but relying on that possibility is not a substitute for a properly executed will.

Executor choice and back-up executors

The executor is responsible for administering the estate — applying for a grant of probate where required, collecting assets, paying debts and taxes, and distributing the residue. A good executor is trustworthy, organised, willing to act and likely to survive the will-maker. Naming a back-up executor is important because primary executors sometimes predecease the will-maker or renounce. For larger or contested estates, appointing more than one executor, or a professional executor, may be appropriate.

Guardians for minor children

Parents of minor children can, and generally should, nominate a guardian in the will. The nomination is not automatically binding on the Family Court, but it is given significant weight. Any practical arrangements for the child's care and any funds available to the guardian should be addressed alongside the appointment so that the guardian is not left to work out both issues after a bereavement.

Storage and safekeeping

The original will should be stored securely and its location known to at least one trusted person. Clients often ask us to hold the original in the firm's safe custody, with a copy kept in their own records. Wills stored in home safes or with the will-maker's personal papers are sometimes lost or destroyed and can create a presumption of revocation that is difficult to overcome.

When separate advice is needed

Superannuation, family trusts, private companies and cross-border assets are common areas where a will alone does not achieve the intended succession. We identify those areas at the initial meeting and coordinate with the client's accountant and financial adviser where required.

Limitations of general information

The information on this page is general. A will must be drafted for the will-maker's particular family, assets and intentions.