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What is a Will?

A Will is a written document that explains how someone would like their property (their ‘estate’) to be distributed after they die.

What can be left in a Will?

The estate includes any goods they own at the time of death, including cash, savings, investments and superannuation.

Some Wills also contain other matters, such as:

  • how the Will-maker would like their remains to be dealt with
  • organ donation, and
  • who they would like to act as guardians of their children.

A Will can also include a future interest in property.

What can not be left in a Will?

Some property passes from the deceased to another person by other mechanisms and the Will has no effect on these processes.

Examples of property that is not passed by a Will are:

  • jointly-owned property—called 'passing by survivorship'
  • assets from a person's superannuation fund (a person usually nominates a beneficiary when they take out the policy)
  • insurance policies (a person usually nominates a beneficiary when they take out the policy), and
  • assets that are held in family companies or trusts—although under a deceased's control—are not actually owned by them and so are not able to be directly distributed according to a Will. The Will must pass the control of the company to trustees or to some other beneficiary.

More information

Legislation

Wills Act 1997 (Vic)

This Act commenced operation on 20 July 1998. It does not completely replace the 1958 Act. Some sections only apply to Wills made after this date—for example the rules for execution of a Will and interested witness provisions.

  • s. 4—what property may be disposed of by a Will
  • s. 4(2)—property is defined broadly to include the right to recover property or to transfer property
  • s. 52—the transitional provisions explain the interrelationship between old and new Acts

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

Wills Act 1958 (Vic)

This Act still applies to some aspects of Wills, particularly if the Will was made before 20 July 1998.

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

Updated