Formalities of a will

30 Jan

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 (Wills Act 1997 s 7).
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.
The willmaker and each witness to the will should sign each page of the will so that each page is identified as part of the will.
The signature and any initials of the willmaker must be witnessed by two witnesses. The witnesses must sign after the willmaker has signed. One of the witnesses may also be the person who signed for the willmaker, or who helped the willmaker sign. For wills made before 20 July 1998, both witnesses must be present together at the time of signing the will by the willmaker. Where wills are signed after 20 July 1998, the witnesses must be present when the willmaker signs, but they need not sign their names in the presence of the other witness. To avoid confusion, it is advisable for witnesses’ signatures to appear immediately below that of the willmaker. If one or more of the formalities are not complied with, the person could be regarded as having died without a valid will. The witnesses need not know that the signature they are witnessing is a signature to the will of the willmaker (Wills Act 1997 s 8). Each witness to the will should write their full name and address under their signature so they can be located more easily after the willmaker dies.

NOTE: All signatures should be made using the same pen.

Amendments to the A&P Act were introduced by the Justice Legislation Amendment (System Enhancements and other Matters) Act 2021 (Vic) in 2021 to enable remote execution and revocation of wills and codicils during the COVID-19 pandemic. Affected sections are sections 7(2), (5), (6) and (7) regarding executing a will and sections 8B, 8C and 8D which define which will is ‘the will’ and procedures for recording remote execution. Section 12(3) covers remote revocation pursuant to section (2)(e), and section 16(5) covers remote revocation of a codicil. Section 19(2) excludes international wills from remote execution and section 50A enables amendment of regulations to cover remote execution. Additionally, section 57 ensures the validity of wills executed remotely before the enactment of the Justice Legislation Amendment (System Enhancements and other Matters) 2021 (Vic) relying on the COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020 (Vic).

If the will is longer than one page, all the separate pages should be joined (so that nothing is lost). No other document or piece of paper should be attached to the will. If professional help is not taken, will forms – available for sale from newsagents and some legal centres (e.g. Fitzroy Legal Service) – should be used where possible.

Witnessing the will is known as ‘attestation’ (Wills Act 1997 ss 7, 10) (see ‘Formal language’, below). Section 11 now permits beneficiaries in the will, or married to or a domestic partner of people mentioned in the will to witness the will (see ‘Interested witnesses’, below). Blind people cannot witness a will (Wills Act 1997 s 10).

The will should be dated at the time of signing. Where no date appears, the witnesses must swear an affidavit as to the date on which it was signed. The will is effective from the date of the willmaker’s death, not from the date of signing.

Where there is more than one will in existence, the Registrar of Probates must be satisfied that the document produced is the last valid will of the willmaker.

The Supreme Court of Victoria has the power under section 9 of the Wills Act 1997 to admit to probate documents that are not executed in accordance with the formal requirements for the execution of wills (as set out in Wills Act 1997 s 7) or in some cases, not executed at all. Rules 2.08 and 2.09 of the Administration and Probate Rules set out the procedure for applying to the court to validate an informal will.

For the court to make such an order three things must be shown:

that a document exists;
that the document sets out the testamentary wishes of the testator; and
that the deceased testator intended that document, without anything more, to be their last will.

A will can be made using formal or informal language; no legal jargon need be used. The important thing is that the willmaker’s wishes are clearly expressed. Essentially, it must state that it is the will of the willmaker, and that upon death the property owned by the willmaker is to be dealt with according to clear directions contained in the will.
It is, however, highly desirable to use a standard phrase identifying the willmaker’s and witnesses’ signatures. This is called the attestation clause. It is usually placed at the foot of the will, beside the space allowed for the signatures of the willmaker and the witnesses. The following is an example of an attestation clause: ‘Signed by the willmaker in the presence of us both (both of us being present at the same time).’ If this clause, or a clause having the same effect, is not used, a sworn document is required of the two witnesses as to their attestation, when the will is submitted for probate. If one or both witnesses die before the willmaker, or cannot be found after proper enquiry, the will may still be valid if there is evidence from other people present at the time of signing the will, or evidence as to the identification of handwriting of the witnesses and the testator.
If a willmaker is not using professional legal help, having another person read over the will may help to ensure that the meaning of the will is clear. The law relating to construing or interpreting wills is extremely technical and may involve large legal fees if a court application is necessary. Great care should be exercised as to how a will is drawn up. If possible, professional help should be sought.