Wills and Estate claims

Wills and estates law deals with what happens to a person’s property during their life, after their death and when someone else needs legal authority to manage an estate. It can involve preparing a will, appointing an executor, applying for probate, administering an estate, resolving disputes between beneficiaries or contesting a will.

A properly prepared will can reduce uncertainty and conflict. It allows a person to decide who should receive their property, who should manage the estate and how particular gifts should be dealt with. Without a valid will, the estate may be distributed according to intestacy laws rather than personal wishes. In Victoria, wills are governed by the Wills Act 1997, while estate administration and intestacy are dealt with under the Administration and Probate Act 1958.

A will should not be treated as a simple form. It is a legal document that may need to operate many years after it is signed. The person who made it will not be there to explain what they intended. For that reason, clear drafting is important. A poorly drafted will can create confusion, delay and expensive disputes.

Making a valid will

A will sets out how a person wants their estate distributed after death. The person making the will is often called the will-maker or testator. The estate may include real estate, money, shares, vehicles, business interests, personal items and other property.

In Victoria, a valid will must usually be in writing and signed in front of two or more witnesses. The will-maker must also have mental capacity when the will is made. A valid will should be written, signed and witnessed properly. Proper capacity is required.

Capacity is often important. A person must understand what a will is, what property they own and who might reasonably expect to benefit from the estate. Capacity can become a serious issue where a person is elderly, unwell, affected by cognitive decline or under pressure from someone else.

A lawyer can help reduce that risk. Proper instructions can be taken. The circumstances can be recorded. If capacity is likely to be questioned later, medical evidence may be obtained at the time the will is made. That can make the will harder to challenge after death.

What should a will include?

A will should usually appoint one or more executors. The executor is the person responsible for administering the estate. This can involve identifying assets, paying debts, applying for probate, dealing with tax issues and distributing the estate to beneficiaries.

Choosing an executor is important. The role can involve legal responsibility, paperwork, conflict and practical decisions. A good executor should be trustworthy, organised and willing to act. In some estates, it may be sensible to appoint more than one executor. In others, appointing multiple people may create delay or disagreement.

A will should also identify beneficiaries clearly. A beneficiary is a person or organisation who receives a benefit from the estate. Gifts should be described carefully. If a person receives a specific item, the will should make that clear. If the estate is divided by percentage or share, the drafting should avoid uncertainty.

A will should also deal with the residue of the estate. The residue is what remains after debts, funeral expenses, taxes and specific gifts are dealt with. Many will disputes arise because the residue clause is unclear or incomplete.

Updating a will

A will should be reviewed when major life events occur. These may include marriage, separation, divorce, the birth of children, the purchase of property, the sale of a business or the death of an executor or beneficiary.

Marriage and divorce can affect a will. Legal advice should be obtained if a person has married, separated or divorced after making a will. The same applies where a person has entered a new relationship or become part of a blended family.

Blended families often require careful estate planning. A person may want to provide for a current partner while also protecting children from an earlier relationship. Without careful drafting, these situations can lead to disputes after death.

A will should also be reviewed if assets change significantly. A gift of a specific property may fail if that property is sold before death. A business interest may require separate planning. Superannuation and life insurance may not always pass under the will, depending on nominations and ownership structure.

Probate

Probate is a court process that confirms the validity of a will and gives the executor legal authority to administer the estate. In Victoria, the Supreme Court has exclusive authority to issue grants relating to deceased estates. Its Probate Office processes applications for probate and letters of administration.

A grant of probate is usually required where the deceased owned significant assets in their sole name. Banks, share registries and the Land Titles Office may require probate before releasing or transferring assets. If someone dies owning assets in Victoria, such as property or money, an application to manage the estate may be needed.

Probate is not always required. Some small estates can be dealt with informally. Jointly owned property may pass to the surviving owner outside the estate. Superannuation may also be dealt with separately. Whether probate is needed depends on the type and value of assets, how those assets are owned and what each institution requires.

A lawyer can assist by preparing the application, reviewing the will, identifying required documents and dealing with requisitions from the Probate Office. Mistakes in probate applications can cause delay. Delay can then affect beneficiaries, creditors and the administration of the estate.

Letters of administration

Letters of administration may be required where a person dies without a valid will. This is called dying intestate. Letters of administration may also be needed where there is a will but no executor is able or willing to apply.

A grant of probate is issued to the executor named in the last valid will. Letters of administration are issued where there is no executor, or where the estate otherwise needs an administrator appointed.

An administrator has a similar role to an executor. The administrator collects estate assets, pays debts and distributes the estate. The difference is that the administrator’s authority comes from the court rather than from appointment under a will.

Where there is no will, the estate is distributed under intestacy rules. These rules decide who receives the estate. The result may not match what the deceased would have wanted. The Supreme Court provides guidance to help work out who is entitled to share in a Victorian estate when someone dies without a valid will.

This is one of the main reasons a will matters. Without one, the law decides who receives the estate. Family circumstances may be complex, but intestacy rules are fixed. They may not reflect personal relationships, estrangement, dependency or informal promises.

Estate administration

Estate administration begins after death. The executor or administrator must identify the assets and liabilities of the estate. They may need to locate the will, arrange the funeral, notify banks, secure property, obtain valuations and communicate with beneficiaries.

Debts must usually be paid before beneficiaries receive their entitlement. This may include funeral expenses, mortgages, personal loans, tax debts, credit cards and other liabilities. If the estate has insufficient assets, legal advice should be obtained before any distribution is made.

Executors should act carefully. They owe duties to the estate and beneficiaries. They should avoid conflicts of interest. They should keep records. They should not distribute the estate too early if there is a risk of claims, debts or uncertainty.

Beneficiaries may become concerned if an executor delays, refuses to provide information or acts unfairly. Not every delay is improper. Probate can take time. Property sales can take time. Tax and creditor issues can also delay distribution. However, unexplained delay may justify legal advice.

Challenging or contesting a will

Will disputes can arise in different ways. A person may challenge the validity of a will. This may involve claims about capacity, undue influence, suspicious circumstances or whether the will was properly signed and witnessed.

A person may also contest a will because they believe inadequate provision was made for them. In Victoria, this is commonly called a testator’s family maintenance claim. A person who can show the deceased had a moral duty to provide for them may be able to challenge a will through a Supreme Court process.

These claims are not available to everyone. The claimant usually needs a close relationship or dependency recognised by law. The court may consider financial need, relationship with the deceased, size of the estate, competing claims and any reasons for the deceased’s decisions.

Time limits are important. Anyone considering a claim against an estate should get advice quickly. Executors should also be cautious before distributing an estate where a claim may be made.

Powers of attorney and medical decision-making

Estate planning is not only about death. It can also involve planning for loss of capacity during life. An enduring power of attorney allows a person to appoint someone to make certain financial or personal decisions if needed. In Victoria, powers of attorney are governed by the Powers of Attorney Act 2014.

A person can also appoint a medical treatment decision maker. A person can choose a medical treatment decision maker if they have decision-making capacity at the time of appointment.

These documents can be just as important as a will. A will only operates after death. Powers of attorney and medical appointments can operate while a person is alive but unable to make decisions.

Why legal advice matters

Wills and estates matters often appear straightforward until something goes wrong. A will may be invalid. An executor may be unsuitable. A beneficiary may be left out. A family member may allege pressure or lack of capacity. An estate may involve debt, business interests, superannuation or property held in different names.

A lawyer can help prepare a valid will, advise executors, apply for probate, deal with letters of administration and resolve estate disputes. Legal advice can also help prevent future conflict by making intentions clear and recording the reasons for important decisions.

Good estate planning gives certainty. Good estate administration protects executors and beneficiaries. Good advice in a dispute can prevent unnecessary cost and delay.

This page provides general information about wills and estates in Victoria. It is not legal advice. Anyone preparing a will, administering an estate or involved in an estate dispute should obtain advice about their own circumstances.