A will is one of the kindest things you can do for the people you love. It is simply a written record of who should receive what you own after you die, and who you trust to look after it all. Yet many Victorians put it off — often because they think it is complicated, expensive or only for the wealthy. It is none of those things. This guide explains, in plain English, how making a will works in Victoria, so you can take the first step with confidence.
This is general information, not legal advice. Your situation is unique, so please speak with us before relying on anything below.
What a will actually does
A valid will lets you decide three important things: who inherits your assets (your beneficiaries), who is in charge of carrying out your wishes (your executor), and, if you have young children, who you would like to care for them (their guardian). It can also record funeral wishes and gifts to charity. Without a will, the law decides these things for you — and that may not reflect what you would have wanted.
Who can make a will?
In Victoria, wills are governed by the Wills Act 1997 (Vic). To make a valid will you generally need to:
- be 18 years of age or older (there are limited exceptions, such as for people who are married);
- have "testamentary capacity" — meaning you understand that you are making a will, broadly understand what you own, and can weigh up who you might provide for; and
- make the will freely, without anyone pressuring or unduly influencing you.
Capacity is judged at the time the will is signed. If there is any doubt — for example, where a person is unwell or elderly — it is wise to have a solicitor involved and, in some cases, a medical opinion recorded at the time.
What makes a will legally valid
For a will to be valid in Victoria, the formal requirements are straightforward but they must be followed carefully:
- the will must be in writing (typed or handwritten);
- it must be signed by you, the will-maker; and
- your signature must be made in the presence of two or more witnesses, who are both present at the same time, and who then sign the will in your presence.
A crucial point that catches people out: a witness — or the spouse of a witness — should not be a beneficiary. If a witness stands to inherit, the gift to them may fail. Choose two independent adults, such as neighbours or colleagues, who gain nothing under the will.
Can I just write it myself?
You can, and a "will kit" from a newsagent is better than nothing. But homemade and kit wills are the ones we most often see go wrong — through ambiguous wording, missing witnesses, gifts that lapse, or assets that were never actually owned by the person. The cost of fixing a flawed will after death, in the courts, almost always dwarfs the modest cost of having one prepared properly in the first place.
Choosing an executor
Your executor is the person who administers your estate — locating the will, applying for probate if needed, paying debts and taxes, and distributing what remains to your beneficiaries. It is a position of real trust and some work, so choose someone organised, honest and willing. Many people appoint a spouse, an adult child, a trusted friend, or a professional such as a solicitor. It is sensible to name a backup executor in case your first choice is unable or unwilling to act.
A will only works if it can be found. Tell your executor where the original is kept — and never staple, pin or remove anything from it, as marks can raise questions when it is presented to the court.
What probate means
Probate is a grant from the Supreme Court of Victoria confirming that a will is valid and that the executor has authority to act. Not every estate needs it — small or simple estates often do not — but banks, share registries and the Titles Office will frequently ask for a grant before they release assets. Your executor can apply themselves, though most engage a solicitor to handle the paperwork and deadlines.
What happens if you die without a will?
Dying without a valid will is known as dying "intestate". When that happens, your assets are distributed according to a fixed legal formula set out in the Administration and Probate Act 1958 (Vic) — not according to your wishes. Depending on your family situation, that formula may divide your estate between a partner and children in ways you would not have chosen, and it can leave step-children, close friends or charities with nothing. Someone must also apply to the court to be appointed administrator, which adds delay and cost at an already difficult time. A will avoids all of this.
Keeping your will up to date
A will is not "set and forget". In Victoria, marriage generally revokes an earlier will (unless the will was made in contemplation of that marriage), and divorce usually cancels gifts to a former spouse. It is worth reviewing your will after any major life change, including:
- marriage, separation or divorce;
- the birth or adoption of a child or grandchild;
- buying or selling significant assets, or starting a business; or
- the death of a beneficiary or your chosen executor.
While you are thinking about your will, it is also worth putting in place an enduring power of attorney and an appointment of medical treatment decision maker. These look after your affairs and health decisions while you are alive but unable to act — something a will cannot do.
A note on challenges
Even a well-drafted will can be contested. Under Victoria's family provision laws, certain eligible people — such as a partner or child — can apply to the court for a larger share if they believe they have not been adequately provided for. You cannot always prevent a claim, but clear drafting, sensible structuring and a recorded explanation of your decisions make your wishes far easier to defend. This is one of the strongest reasons to have a will prepared by a solicitor who can foresee these issues.
How Pasha Legal can help
For more than 25 years we have helped Melbourne families put their affairs in order with calm, plain-English advice and no intimidation. We will sit down with you, understand your family and your assets, and prepare a will — along with powers of attorney where needed — that genuinely reflects your wishes and stands up when it matters. If you are an executor facing probate or a dispute, we can guide you through that too. Whatever stage you are at, you don't have to face it alone. Call us on (03) 9848 7275 or book a confidential consultation, and we will tell you honestly how we can help.