Wills

A will remains valid until it is revoked or a later will or codicil is made. Between the time of making a will and the willmaker’s death, circumstances may change. The willmaker may sell or buy property, the beneficiaries in the original will may die, or new beneficiaries may come into consideration. Accordingly, a willmaker should review their will regularly to ensure their will is relevant and still correctly reflects their intentions. Whether circumstances change or not, the will remains in force as at the date of signing unless the will is changed in whole or in part (s 18 Wills Act 1958 (Vic) (‘WA 1958’)).

If the willmaker does not own the asset given under the will at the time of the willmaker’s death, the gift is ineffective and is said to have ‘adeemed’.

The will itself cannot be altered by obliteration (rubbing out), interlineation (writing between lines) or by any other alteration after the will has been signed, unless the alteration is signed by the willmaker and the two witnesses in the same way as for the whole will.

All signatures to the alteration must be made as close as possible to the alteration itself; this is usually done in the margin. Where any typing or handwritten mistakes occur when the will is being prepared, these should be corrected and the correction initialled by the willmaker and witnesses at the time of attestation. A formal codicil can be executed to make alterations to a will. However, generally it is preferable to execute a new will incorporating the required amendments rather than to have two documents that can be difficult to read together.

A will can be changed by:

1. making a new will revoking earlier wills;
2. making a codicil to an existing will, altering part of the existing will; or
3. ripping up the will with the intention to revoke the will; this revokes the will, but another must be made to replace the destroyed will.

A codicil is an addition to an earlier will that also confirms the remaining provisions of that will. It must conform to all the formalities outlined above in relation to the will.

A codicil that refers to the ‘will’ in general terms has the effect of confirming the will and any earlier codicil.

Codicils are used to make minor changes to the will. If major changes are to be made or where the will is short (say, not over one page long) it is better to make a new will incorporating the desired addition.

To revoke a will is to cancel its effect.

A will can be revoked in any of the four following ways.

1. If the willmaker marries, under section 13 of the Wills Act 1997 (Vic) (‘WA 1997’), a will made at any time before the marriage is automatically revoked, unless:

1. the will is expressed to be made in contemplation of that marriage;
2. the terms of the will, or those terms and the surrounding circumstances at the time of making the will, indicate that the willmaker contemplated that he or she would or might marry and intended the gift made in the will to take effect because of that marriage; or
3. the will specifically gives land or personal property to the person whom the willmaker subsequently marries.

Subsequent divorce or separation will not revive or revalidate any will made prior to the marriage. Effective from 27 April 1995, gifts to divorced spouses are invalidated and their appointment as executors under the will of a divorced spouse is revoked when the divorce becomes absolute. The rest of the will remains operative (s 14 WA 1997). The Act, however, still allows a divorced spouse to be a guardian or trustee for infant children of the marriage (s 16A WA 1958; ss 13, 14 WA 1997). It is important to remember that, under current Victorian law, a will made during the existence of a marriage is still effective after separation or divorce. It is therefore important to remember on the breakup of a marriage that it will be necessary to make a fresh will and perhaps include a new spouse or partner.

If you are living in a de facto relationship and want your partner (in the Administration and Probate Act 1958 (Vic) (‘A&P Act’) called a domestic partner) to inherit some or all of your estate, you must make a will; particularly if you have lived together for less than two years.

A domestic partner is not included in the scheme of intestacy in the A&P Act unless the deceased intestacy and the domestic partner (which includes a same-sex partner) have lived together continuously for two years immediately prior to the death of the intestate partner, or they have had a child who is under 18 at the death of the deceased intestacy, or the parties have registered their relationship under the Relationships Act 2008 (Vic).

If the intestate deceased also had a spouse as well as a domestic partner, a sliding scale regulates their relative entitlements, based on the length of the domestic relationship. The domestic relationship must have existed immediately before the willmaker’s death (s 3 A&P Act). If the intestate deceased had a spouse and multiple domestic partners and died after 1 November 2017, sections 70Z–70ZE 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). 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).

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.