The law of wills
What is a will?
A will is a document that sets out how a person wants their property to be distributed after their death.
If a person wishes their property to be disposed of in a particular way after they die, then there is no other way to ensure this occurs than by making a will.
A will is valid even where the deceased person has changed names and/or address between the time the will was signed and their death.
Once a will is made, it remains effective until it is revoked/replaced by a subsequent will.
Similarly, a beneficiary (i.e. any person who receives benefits under a will) can receive benefits under a will where such changes have occurred, although it may be necessary for that person to provide evidence of their identity.
A will is still valid if it is not dated.
Note that the term ‘will’ includes a codicil, which is a formal addition (or PS) made to an earlier will.
A person’s property
A deceased person’s property can be land or personal property, including goods, shares, deeds, money and electronic assets. This property is also known as the deceased person’s ‘estate’.
In a will, one or more people are named to carry out the deceased person’s directions for disposing of their estate: these people are called the executors. The person making the will should ask people if they are willing to act as executors. However, a will is still valid if no executor is appointed. If no one is named as executor in the will, the person who receives the greatest benefit from the will is usually the person entitled to administer the will as administrator with the will annexed.
An executor can deal with an estate only after a will has been approved as valid by the registrar of probates, or by a judge of the Supreme Court exercising their probate jurisdiction. This approval is called a grant of probate 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 Administration and Probate Act 1958 (Vic) (‘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 ‘The distribution of an intestate’s estate to the next of kin under the provisions of the A&P Act for deaths before 1 November 2017’ table in ‘Intestacy‘.
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).
The traditional terms for the deceased person is testator or testatrix, but in this chapter we use the gender-neutral term ‘willmaker’.