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Invalid Wills

What happens if a Will does not comply with the requirements of the Wills Act.

A Will may not strictly comply with the requirements of the Wills Act for a valid Will—for example, if the Will-maker forgot to sign the Will.

The Supreme Court has the power to dispense with some formal requirements for a valid Will, if the court is satisfied that Will-maker intended the document to be their Will. However, this can take time.

The Supreme Court can also:

  • make decisions about validity of alterations made to a Will, additions or revocations of a formal Will document
  • rectify Wills that contain clerical errors and don’t give effect to the intentions of the Will-maker—for example if couple execute mirror wills but accidentally each sign as testator of the other's will
  • look at a Will and admit it to probate under Victorian law, even if the Will was made outside Victoria.

See s. 9—Wills Act 1997 (Vic) (link below)

Other special circumstances

The old Wills Act 1958 provided for documents to be recognised as valid Wills even though they did not comply with legal requirements. This only applied to Australia's armed forces and sailors, during active duty and in dire circumstances. This section still applies to Wills that were made before the new Act came into force on 20 July 1998. Such documents were known as privileged Wills.

See s. 10—Wills Act 1958 (Vic) (link below)

Admitting a Will to probate

For a court to be able to admit a document to probate there must be:

  • written evidence of Will maker's intention
  • evidence that the Will-maker intended the written document to be their Will.

The court will hear evidence of statements made by Will-maker and evidence about the way that the document was executed before making a decision about what may have been the Will maker's intention.

It is usually not sufficient to have:

  • merely a general statement of an intent to make a Will
  • a draft—as indicative of an intention to do something more before executing.

Wills that need a Supreme Court order before they can be admitted to probate are called informally executed Wills.

More information

Legislation

There are two Acts that apply in Victoria. The new Act commenced operation on 20 July 1998 but does not completely replace the old Act.

Wills Act 1997 (Vic)

  • s. 7—how should a Will be executed
  • s. 9—court may allow a document to probate even where it has not been properly executed
  • s. 9(4)—documents intended to be Wills made outside Victoria can be admitted to probate
  • s. 31—when a Will can be rectified

See Wills Act 1997(opens in a new window).

Wills Act 1958 (Vic)

  • s. 10—privileged Wills
  • s. 7—what is required for a valid Will

See Wills Act 1958 (Vic)(opens in a new window).

Updated