What makes a Will Valid? Understanding the Legal Requirements for Proper Execution

A valid Will is one of the most important estate planning documents you can have. If a Will is not properly prepared and executed, it may be challenged or declared invalid, potentially causing delays, disputes and unintended consequences for your family and beneficiaries.

What is a will?

A Will is a legal document that sets out how a person wants to distribute their estate. It can set out other matters in a non-binding way, such as a person’s burial or funeral preferences.

The maker of a Will (called a “Testator” or “Testatrix”) can appoint one or more executors of the estate who, after the passing of the Testator or Testatrix, can manage the estate on their behalf and according to the wishes of the Testator or Testatrix as set out in the Will.

What can you leave in a will?

Broadly speaking, your estate consists of assets owned by you at the time of your death.

Common components of an estate are assets (such as money, shares, cash, cars or real estate) and personal belongings (such as household furniture, clothes or jewellery).

The estate is broadly divided into two portions as follows:

• Specific gifts to specific beneficiaries (e.g. the funds in X bank account go to Beneficiary A, and the funds in Y bank account go to Beneficiary B); and

• Residual bequests, dealing with everything else after the specific gifts are made (e.g. once bank account X and Y are distributed to Beneficiary A and B, Beneficiary C gets everything else).

A Will can deal with any combination of specific and residual bequests, or only deal with the residual (if the Testator or Testatrix has no specific gifts to make).  

What happens if a Will is invalid?

If a Will is found by the relevant court to be invalid, the estate of the deceased may be distributed according to an earlier valid Will.

If there is no valid Will, the estate will likely be dealt with under the then-current intestacy laws, which determine who inherits and in what proportions. This can produce outcomes that differ significantly from the wishes of the Testator or Testatrix.

Even if a court decides to declare the invalid Will of a deceased person to be valid (pursuant to the court’s power to do so upon considering evidence) this process generally costs significantly more time and money – not to mention the emotional cost on that person’s friends and loved ones.

What makes an execution of a Will valid in Victoria?

Pursuant to section 7 of the Wills Act 1997 (Vic), a Will made in Victoria will be broadly valid where:

• the Will is in writing and signed by the Testator or Testatrix;

• the Testator or Testatrix signed the Will with the express intention of creating a will;

• the Testator or Testatrix signs the Will in the presence of two or more adult witnesses, who are not beneficiaries or executors under the Will (even if the witnesses do not necessarily know that the document is a Will); and

• at least two of the witnesses also sign the Will in the presence of each other and the Testator or Testatrix.

Additional requirements may be imposed where the Testator or Testatrix is blind, deaf, illiterate or under a cognitive disability. You should not assume that the Will has been validly executed simply because it complies with the above requirements.

Can the execution of the Will be completed remotely?

Yes - under section 8A of the Wills Act 1997 (Vic), signing of a Will can be completed remotely in Victoria. The process is significantly more complicated than the traditional process and will require at least one of the witnesses to be a “special witness” (i.e. a lawyer or a justice of the peace).

Whilst a Will properly executed remotely is no less valid than a Will executed traditionally, the remote execution process is technical and subject to strict statutory requirements. Care should therefore be taken to ensure all procedural steps are properly followed, and seeking professional legal assistance is strongly recommended.

When should you review your Will?

You should consider reviewing your Will after major life events, including:

• marriage or divorce;

• the birth of children or grandchildren;

• acquiring or disposing of significant assets (such as the family home);

• commencing or selling a business;

• the death of an executor or beneficiary; or

• significant changes in family circumstances.

There may be other reasons to review a Will from time-to-time and you should consider regularly reviewing the contents of your existing Will (perhaps once every 5 years) to ensure that it still reflects your wishes and intentions.

Planning for the future

A properly prepared and validly executed Will should form part of an estate planning strategy that also considers asset protection, succession planning, trusts, medical treatment decision makers and powers of attorney.

Preparing a valid Will involves more than simply recording your wishes. Careful consideration should also be given to executors, beneficiaries, trusts, powers of attorney and potential future disputes. KCT Legal assists individuals, families and business owners with comprehensive estate planning strategies designed to protect assets and provide certainty for future generations.

Seeking legal advice can provide certainty, minimise the risk of potential disputes or challenges after your death and help ensure that your estate is being administered in accordance with your intention.

KCT Legal can advise on the legal requirements for the preparation and execution of wills, ensuring your estate planning documents are valid and reflect your intentions. We also assist with obtaining and releasing grants of probate and letters of administration, including matters involving overseas jurisdictions, and compliance with the relevant legal requirements.

This article is provided for general information only and does not constitute legal advice. The information may not be appropriate for your particular circumstances. You should obtain specific legal advice before acting or relying on any information contained in this article.