The law of wills
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A will is a document that sets out how a person wants their property to be distributed after their death. There is almost no other way to dispose of property upon death.
Once a will is made, it remains effective until it is revoked/replaced by a subsequent will. A will is valid even where the deceased person (or a beneficiary named in a will) has changed names and/or address between the time the will was signed and their death.
A will is still valid if it is not dated.
Note that the term ‘will’ includes a codicil, which is a formal addition made to an earlier will.
A deceased person’s property can be land or personal property, including goods, shares, deeds, money or electronic assets. This is also known as the 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 of Victoria exercising their probate jurisdiction. This approval is called a ‘grant of probate’ (Administration and Probate Act 1958 (Vic) (‘A&P Act’) s 7) and the document giving the approval is called the probate parchment.
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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.
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 and the children of the deceased person.
‘Next of kin’ can mean even remote relations, and searches may be necessary to find ‘lost’ relatives (A&P Act s 55). For more details, see the table in Chapter 9.4: Estates titled ‘The distribution of an intestate’s estate to the next of kin under the provisions of the A&P Act for 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 (A&P Act s 70ZL).
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.
The law of wills
Chapter: 9.3: Wills
Contributor: Justin Rizzi, Barrister
Current as of: 1 September 2024
Law Handbook Page: 806
Next Section: Formalities of a will
