Wills & estates lawyers

You can make a will if you have legal capacity, also known as testamentary capacity, meaning that you meet the requirements for making a will. The requirements are:

1. Age - Victorian laws allow you to make a will if you're aged 18 years or older. Sometimes, a married person who is under the age of 18 can make a will, but they must get special permission from the Supreme Court of Victoria
2. Understanding – You must be able to understand that you're making a will and the effect of making a will
3. Freedom – You must make the will of your own free choice. You can't be forced or threatened into making the will

You must meet all eligibility requirements for the will to be valid. If there's doubt or an issue with one or more of these requirements, you may need legal advice immediately. Contact us for more information.

We recommend checking your will at least every three years or when you have a significant change in your circumstances. It's advisable to do the same for all other documents in your estate plan.

You need to check your will to ensure that the people you have named in your will are still appropriate to be your executors, beneficiaries and guardians. You also need to ensure that any specific gifts (for example, jewellery) are correctly identified and described.

We recommend that you consider changing your will or making a new will when there is a significant change in your circumstances, for example:

• Marriage
• Separation or divorce
• You have a child
• You wish to change how your estate will be distributed
• You buy or acquire a large asset or start a company

But how do you know whether you should change your will or make a new will? It depends on what needs changing and how simple or complex the change may be. We recommend speaking with your lawyer to work out how to proceed.

Get in touch to learn more.

Yes, you can make a will without using a lawyer. However, whether you should make a will without using a lawyer is a more important question.

You can buy a will kit to make your own will. Sometimes, these kits are referred to as do-it-yourself wills or DIY wills.

Most people who choose DIY wills wish to avoid paying fees to a private lawyer. However, there are many risks. Victorian laws are strict about how wills are signed and witnessed and the Supreme Court will often reject a will if this isn't done correctly.

Other issues may arise if the will kit doesn't meet the requirements of Victorian laws. For example, any errors in identifying a gift or a person may mean that the will, or part of it, is invalid.

Even the simplest of wills can be complicated. Legal language is commonly used to reduce the risk of misinterpretation. However, as soon as you add more content to the will, the complexity skyrockets, as does the chance of an error. Examples of this are specific gifts and business arrangements or trusts.

Another issue is whether there's a risk of legal action, such as leaving out one of your children from the will.

After you pass away, your will must go through a legal process in the Supreme Court of Victoria called probate. It establishes that the will is valid. The Court looks at every detail and is known to refuse probate for the smallest of issues. It can lead to costly and prolonged legal processes that can drain thousands of dollars from your estate.

DIY wills commonly cause such issues. The legal fees for a will may cost hundreds of dollars. However, sorting out the problems after you pass away may cost your estate tens of thousands of dollars. And then there's the stress and time spent by your executor in trying to deal with the issues and secure probate.

While there's no problem-free guarantee when a lawyer drafts a will, there's an excellent chance that any issues will be minimised. This is because an expert wills and estates lawyer can undertake a thorough estate planning process to ensure consideration of your financial, taxation and superannuation issues.

A will is like an iceberg. What you see on the surface isn't the whole picture. Underneath the water, there's a complex legal system at work. If you don't understand how you hold your assets and don't have the correct legal advice, there's a high risk that your will won't work as intended.

It's an excellent reason to seek specialist wills and estate planning legal advice when making a will.

When you're making a will, you will need to consider:

• Who should inherit your estate, and how much each person should receive
• Whether you wish to make any specific gifts (for example, jewellery), and to whom
• Who to appoint as your executor
• Whether there is anyone likely to make a legal claim on your estate
• Whether there is anyone who may depend on you for financial support
• Nominating guardians for any children under the age of 18 years
• Summarising your assets (including any debts)
• What should happen to your business interests after you pass away
• Whether there are any other complex financial, taxation or personal circumstances that you need to discuss with your lawyer

To ensure your will is accurately drafted, you will need to give your lawyer as much information as possible, including:

• Correct addresses and full names
• Detailed descriptions of any specific gifts
• A copy of any trust deeds, company documents or structures
• A list of your assets and debts

The more information you can provide, the better. Our legal advice depends on getting an accurate picture of your financial, personal and business circumstances. It's the best way of ensuring that the will reflects your wishes and caters to the needs of your loved ones.

Get in touch to learn more about what information is required when making a will.

You can give away property for which you're the sole owner (meaning that you don't share ownership with another person), for example:

• Money in bank accounts
• Shares and other investments
• Real estate
• Cars
• Personal items, including furniture and jewellery

As a basic rule, you can only give away property that is yours. This may sound obvious, but many gifts or bequests fail because the property wasn't the testator's to give.

It means that you can't give away property that you own with someone else as a joint tenant. A joint tenancy means that your interest in the property will pass to the other owner when you die (or vice versa). An example of this is a family home that you may own with your spouse or partner. Another example is a joint bank account.

Other examples of property that can't be included in your will include:

• Superannuation
• Life insurance held in your superannuation fund
• Assets held by a trust
• Company assets

If you include any of these items in your will, the Court may decide that the relevant part of your will is invalid. Or worse, it may decide that the entire will is invalid, and it will treat your estate as intestate - as if you have died without a will.

Yes, you can leave your property to anyone you choose, but under Victorian laws, your will can be contested in some circumstances. For more information, see our Contesting a will page.

The money in your superannuation fund, including any life insurance inside superannuation, isn't considered your asset because superannuation isn't something that you can legally own. For this reason, you can't give away your superannuation in your will. Otherwise, all or part of your will may be invalid.

The superannuation fund's trustees have discretion about who they pay your funds to after you pass away. When exercising their discretion, they usually rely on your binding death nomination (BDN).

A BDN is a directive from you that tells the trustee how you want your superannuation distributed if you pass away. For this reason, your BDN must be valid and up-to-date. BDNs expire every three years, so you must review and renew your BDN at least every three years.

As part of our estate planning process, we can review your BDN. When you come to an appointment with us, we ask you to bring a copy of your last superannuation statement. There are important rules and regulations governing superannuation. We can check that everything is in order and that you're aware of your fund's rules and obligations in the event of your death.

Under Victorian laws, dying without having a valid will is known as intestacy, or dying intestate. There are specific laws that deal with intestacy and intestate estates. 

We recommend that any adult should consider having a will. The more complex your financial or business arrangements, the more important this is. See our Probate and estate administration page for more information about intestacy and wills.

An advance care directive (ACD) is a legal document that sets out what health care you'd like to receive, should you be unable to make decisions. It's often used in estate planning.

Your ACD can include:

• Consent to, or refusal of, specific medical treatments
• Things the decision-maker should consider when making medical treatment decisions on your behalf

There are strict requirements for making, signing and witnessing an ACD to ensure validity. Barwon Health offers a free ACD service through Geelong Hospital. Contact Barwon Health for more information about ACDs.

A tragedy pack is a tool developed by Succession Legal. It contains information about your assets and debts and where to find them. It also details where to locate important documents.

The tragedy pack is designed to help your attorney or executor. They can use it to quickly locate everything they need to manage your affairs or administer your estate. Contact us for more information about tragedy packs.