The Law Handbook 2024

Chapter 9.3: Wills 897 and Probate Act 1958 (Vic) (‘ A&P Act ’)) and the document giving the approval is called the probate parchment. Probate, in this context, is different from probate duty, which was the former payment of duties to the government on death (currently there are no state or federal probate or estate duties). For more information, see Chapter 9.4: Estates. What happens if no will is made? How is the deceased person’s property divided when there is no will? When a person dies without leaving a will, that person is said to have died ‘intestate’; if a part of a will is not valid, then the person dies intestate in relation to that part. In the case of deaths before 1 November 2017 , if no will is made, the deceased person’s property is divided according to the scheme in Part 1 division 6 of the A&P Act. In the case of deaths after 1 November 2017 , if no will is made, the provisions of Part 1A, sections 70A–70ZL of the A&P Act, as amended, determine who is entitled to inherit the deceased’s intestate estate. This statutory distribution of the estate may be directly against the deceased person’s wishes. According to the scheme in the A&P Act, any property owned by a deceased person who dies intestate is distributed to the deceased person’s nearest blood next of kin. Under this scheme, the property goes to the surviving spouse or domestic partner, the children of the deceased person, and to the parents or other next of kin (i.e. any blood relations). ‘Next of kin’ can mean even remote relations, and searches may be necessary to find ‘lost’ relatives (s 55 A&P Act). For more details, see the table in Chapter 9.4: Estates titled ‘The distribution of an intestate’s estate to the next of kin under the provisions of the A&P Act for deaths after 1 November 2017’. In the case of deaths after 1 November 2017, where the next of kin is more remote than a first cousin, the deceased person’s estate is deemed to be bona vacantia (i.e. without an apparent owner) and passes to the State of Victoria (s 70ZL A&P Act). Who is the executor of the deceased’s property when there is no will? If there is no will, an administrator is appointed by the court. The administrator is usually the person who receives the largest share of the deceased person’s estate under the intestacy rules set out in division IA of the A&P Act. Under the A&P Act (s 65), a court may order that an executor (of a will) or administrator (in an intestacy) receive an executor’s commission (i.e. a payment for acting as administrator), which is paid from the deceased person’s estate. An executor or an administrator, particularly if they are related to the deceased, may decline to charge (s 65 A&P Act). A surety or insurance bond may also be required by the registrar of probates in some cases to guarantee the proper completion of the estate (s 57 A&P Act; order 7 Supreme Court (Administration and Probate) Rules 2014). NOTE The traditional terms for the deceased person are testator or testatrix, but in this chapter we use the gender-neutral term ‘willmaker’. Formalities of a will 1 The will must be in writing (this includes handwriting, in ink or pencil, typewriting, printing, lithography, photography or other means of representing or reproducing words in visible form). The will can be written in any language, although to avoid problems of translation and interpretation, it is desirable that it be written in English (s 7 WA 1958; WA 1997). 2 A will executed before 20 July 1998 must be signed by the willmaker at the end of the will and include the willmaker’s name, initials or mark, or a signature of another person on behalf of and in the presence of the willmaker. Another person can only sign for the willmaker if the willmaker is competent to make a will and directs the other person to sign on their behalf. Note than an attorney under an enduring power of attorney cannot make a will for the represented person using that power. Wills signed after 20 July 1998 do not need be signed at the end. However, it is prudent to sign a will at that place.