Wills That Re Torn or Marked (Vic)

A will in Victoria is generally valid provided it has been correctly executed according to the formal requirements that are set out in the Wills Act 1997. An informal will (for example, one that is not signed or witnessed) may also be upheld by a court if there is evidence adduced that the testator intended it as a legally binding last will. Sometimes, though, wills that are torn or marked or otherwise damaged can lead to questions as to whether the will is valid. This article looks at what happens when a will is torn, marked or otherwise damaged in Victoria.

Wills that are Torn Or Marked to alter the terms

Under section 15 of the Wills Act, a person validly alters their will if they make an alteration that is signed by the testator and two witnesses. The signatures can be in the margin near the alteration or as authentication of a memorandum referring to the alteration in the will.

Wills that are Torn Or Marked To Revoke them

Under section 12 of the Wills Act, a person can validly revoke their will by:

  • Making a later will;
  • Signing a written declaration to revoke the will;
  • Tearing, burning or otherwise destroying the will with the intention to revoke it;
  • Writing on the will or dealing with the document in a way that satisfies a court that they intended to revoke it. 

Criminal Offence to Destroy A Will

Under section 86 of the Crimes Act 1958, it is an offence to dishonestly and with a view to gaining for themselves, destroy, deface or conceal a will or other testamentary document. This is an indictable offence that is punishable by up to ten years imprisonment.

Will Is Accidentally Torn Or Marked 

If a will is torn or marked and the damage appears to have occurred accidentally, the executor must try to have the will accepted into probate. The executor will need to provide evidence of the circumstances under which the damage occurred and establish that the testator did not intend to revoke their will.

Testamentary Capacity

For a person to validly revoke or alter their will, they must possess testamentary capacity. A person has testamentary capacity if they have the legal ability to make a will and understand the implications of doing so. The level of capacity required to do this depends on the complexity of the will and the number of potential claimants involved.

If a person has lost testamentary capacity and has torn or marked their will in an attempt to alter it, the alteration or revocation will have no effect and the document will remain valid.

What If The Will Cannot Be Found?

Sometimes a person dies and the will cannot be found. Alternately, family members may have a copy of the will but may be unable to find the original document. In this situation, what happens depends on the individual circumstances of the matter.

If the original document was known to have been stored by the testator but cannot be located, it will be presumed that they destroyed it with the intention of revoking the document.

If the original will was stored somewhere other than with the testator and cannot be located, the executor will need to produce a copy of the will to the probate office. The copy may be signed or unsigned but if it is unsigned there will need to be evidence that the document was later signed and witnessed. There will also need to be evidence that it was not later revoked by the testator.

If an executor is unable to find a copy of the testator’s will, they will need to track down the original. If the will cannot be found, the estate will be dealt with according to the rules of intestacy.

If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.

Author

Fernanda Dahlstrom

Fernanda Dahlstrom has a Bachelor of Laws from Latrobe University, a Graduate Diploma in Legal Practice from the College of Law, a Bachelor of Arts from the University of Melbourne and a Master of Arts (Writing and Literature) from Deakin University. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory. She also practised in family law after moving to Brisbane in 2016.
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