The Law Handbook 2024

902 Section 9: Health, wills and other legal issues affecting older people and multiple domestic partners and died after 1 November 2017, sections 70Z–70ZE of the A&P Act regulate the spouse’s and domestic partners’ entitlements. 2 A will or codicil to it or any part of that will or codicil may be revoked by a later will or codicil; all formalities as outlined above must be complied with (s 18(b) WA 1958, s 12 WA 1997), which now includes remote revocation (s 12(3) WA 1997). A revoked will or codicil can be revived provided the document is re-executed as prescribed by section 7 of the WA 1997 (s 16 WA 1997), including remote execution (s7 WA 1997). 3 An earlier will may be revoked by inserting a revocation clause in a later will, revoking all earlier wills (s 18(c) WA 1958; s 12(2)(g) WA 1997). 4 Burning, tearing or otherwise destroying a will revokes it; this must be done by the willmaker or by some person in the presence and at the direction of the willmaker with the intention that the will should be revoked (s 18(d) WA 1958; s 12(2)(f) WA 1997). Revocation and republication If a will is destroyed, and no further will is made, the willmaker dies intestate. A will made before the one destroyed can be revalidated if it is re-signed, newly dated and all other formalities are complied with. An example of a will The following example of a model will gives examples of some of the things a willmaker might like to put in a will. It is only a guide. Care should be taken when using it. For instance, if a willmaker intends to leave everything to one person, the first three clauses are all that is needed. A testamentary disposition is a gift that takes effect on death. Most such gifts are made in wills. This phrase is needed to cover those that aren’t. A testamentary expense refers to such things as the cost of the funeral and obtaining probate. A willmaker should also be aware that the law implies a lot of things into wills. For instance, if a person leaves money to children, the children will not normally get the money until they turn 18. However, the law allows the executor to spend part of a child’s share for that child’s education or benefit (s 37(1)(a) Trustee Act 1958 (Vic)). A guardianship clause should be inserted (see clause (4) in ‘Model will’, below) where the willmaker wishes their child or children under the age of 18 years to be looked after by a particular person or people if the willmaker dies. It should be a person who is likely to outlive the willmaker (e.g. not the parents of the willmaker). It gives the person appointed legal control over children until a court decides otherwise (which would only happen if someone challenges the arrangement). In the event of a challenge the Family Court may override the provision of the will as to guardianship of an infant child. It should also be noted that the court has no power to force guardians appointed under a will to act as guardians. Having a will drawn up For a small fee, a will can be drawn up by a solicitor, a trustee company or the State Trustees (see ‘Contacts’ at the end of this chapter). The law of wills has many pitfalls, so it is highly advisable to see a lawyer, legal service or trustee company about drawing up a will, particularly if complex issues (e.g. estate claims, taxation, creating trusts, beneficiaries with disabilities) are involved. A will is usually taken at face value. If the will is incorrectly drafted, it is difficult to admit evidence to show that the willmaker may have intended something different from the words used in the will. It is also very expensive to have a will interpreted by the Supreme Court. Contacts Probate Office 450 Little Bourke Street, Melbourne Vic 3000 Tel: 8600 2000 Email: probate@supcourt.vic.gov.au Web: www.supremecourt.vic.gov.au/wills-and-probate State Trustees 1 McNab Avenue, Footscray Vic 3011 Tel: 1300 138 672 Web: www.statetrustees.com.au State Trustees also has offices in Bendigo and Dandenong.