Parties involved in making a will
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Any person over the age of 18 years may make a will. A minor may make a will if the court authorises that minor to make a specific will (Wills Act 1997 s 20).
Any person making a will must have the mental capacity to know what they are doing.
The will must be made of the person’s own volition without pressure from anyone. The willmaker must also know and understand the effect of the will. If the willmaker’s first language is not English, the will should be translated to the willmaker’s first language before they sign it.
Where a person is very ill or old and wants to make or change a will, if possible, the willmaker’s treating doctor should swear an affidavit stating that the willmaker has sufficient understanding of their circumstances to be able to carry out their intentions. That is, that the willmaker knew, at the time of making their will, what a will was, knew who of their family or other persons would have a claim on their estate, was able to decide between those claims and knew what assets and liabilities they had. The doctor’s affidavit should also state that the willmaker was not so confused by illness or medication as not to know what was happening or what they were doing.
If the willmaker is paralysed or too weak to sign, the will may be signed with a mark, or some other person may sign it on behalf of and at the direction and in the presence of the willmaker (Wills Act 1997 s 7(1)(a)). The mental, not the physical, capacity of the willmaker is what is important here.
A mentally incapacitated person or a very young child can have a will made for them by the Supreme Court following an application by a person acting on behalf of the incapable person (Wills Act 1997 ss 21–24, 25, 30). This is known as a ‘court authorised will’ or a ‘statutory will’. A statutory will is often used to avoid intestacy where the intestacy beneficiaries are no longer in the mentally incapacitated person’s life.
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There is no formal requirement that a legal practitioner must draw up a will, but if the willmaker is unsure about any proposed provision, either a solicitor, the State Trustees, a private trustee company, or a legal service should be consulted about the wording of the proposed will.
The Supreme Court of Victoria can now amend wills that do not reflect the intention of the deceased person because of a mistake in the will caused by either a typographical error, or because the wording of the will as it is signed does not accurately reflect the true instructions of the testator as explained to the person who prepared the will (Wills Act 1997 s 31). This sort of action must be made within six months of the date of the grant of probate of the will (s 31(2)). This is the case unless the court extends the time within which to make such an application, provided the estate has not been completely distributed at that time (Wills Act 1997 s 31(3)).
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An ‘interested witness’ is a witness to a will who is given any property or power by the will (Wills Act 1958 s 13). An interested witness is also the spouse or domestic partner of a witness. In this context, a domestic partner is a person who is a domestic partner of the witness at the time of witnessing. Interested witnesses also include beneficiaries not named, but in a group, such as ‘my children’.
If an interested witness does witness a will, the will may still be proved, but in the case of wills signed before 20 July 1998, that witness will lose their entitlement to take a benefit under the will, except for certain limited circumstances (Wills Act 1958 s 13).
The term and definition ‘interested witness’ no longer appears in the Wills Act 1997. An ‘interested witness’, as previously defined, may sign a will after 20 July 1998 without losing their entitlement under the will (Wills Act 1997 s 11). However, the courts may be suspicious if a witness to a will is also a beneficiary of that will. To avoid any doubts about a person’s eligibility to inherit, no beneficiary named in a will, or the spouse, domestic partner or child of a beneficiary, should witness the will.
For all wills made after 20 July 1998, a beneficiary must survive the willmaker for 30 days to inherit unless there is a specific contrary intention in the will (Wills Act 1997 s 39).
Parties involved in making a will
Chapter: 9.3: Wills
Contributor: Justin Rizzi, Barrister
Current as of: 1 September 2024
Law Handbook Page: 808
Next Section: Changing a will
