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Wills And Estates in Melbourne

Wills and estates is a field of succession law that deals primarily with the posthumous transfer of assets of one individual to another. In Melbourne, the Administration and Probate Act 1958 sets out the formal requirements of a will and the rules about the administration of a deceased estate. A wills and estates solicitor can help their client to navigate these processes, draft testamentary and trust documents, undertake deceased estate administration and represent clients in will litigation. This article explores the importance of estate planning and the field of wills and estates in Melbourne.

Preparing wills and estates in Melbourne

It is essential that every capable adult make a will to provide for his or her family and dependents. While a young person may think they have all the time in the world, and few assets to account for, it is always better to prepare for the unexpected.

Children under the age of eighteen cannot make a will in Melbourne unless they are planning to marry or are already married, or with the permissions of the Supreme Court of Victoria. A child is not considered capable of forming testamentary intention and therefore cannot give instructions. An adult with diminished capacity may also not be able to make a will, unless they have sufficient testamentary capacity. A solicitor will decline to take instruction from a client if there is real doubt as to the client’s ability to comprehend their actions.

A will is a legal document that appoints an executor to carry out the testator’s instructions about the future distribution of their deceased estate. A will might be basic or complex, depending on the size of the estate and the complexity of the testamentary arrangements. A testator should draft their will to be easily comprehensible, to facilitate the identification of beneficiaries and the orderly distribution of assets.

Wills and estates in Melbourne: informal wills

Succession law in Melbourne requires that a document be drafted according to certain rules in order to be a valid, formal will. A solicitor from Go To Court Lawyers can draft a will to follow these requirements and express the wishes of a testator.

At a minimum, a will must be:

  • Typewritten or neatly handwritten;
  • Signed and initialled on all pages by the testator; and
  • Witnessed and affirmed by two independent parties who are not a spouse or beneficiary of the testator.

In the event that a document does not follow these instructions, it is known as an informal will. Only the Supreme Court can judge whether an informal will is valid. If the court finds that it is invalid, and the testator has not written another valid will, then the estate will be found to be intestate. 

A will typically includes a list of bequests to chosen beneficiaries, such as family members, dependents and charitable institutions. These bequests might be for specific assets or amounts of money, or the estate might be divided into percentage shares. In some circumstances a testator may choose to insert exclusion clauses into their will to emphasise that a particular person is not entitled to provision from their estate.

A will can also include non-binding clauses pertaining to funeral and burial instructions, and the appointment of guardians for minor children. Non-binding clauses cannot be legally enforced, but they provide guidance for the administrator or executor administrating the estate as to the wishes of the testator in relation to specific topics.

Wills and estates Melbourne: deceased estates

In Melbourne, a deceased estate is composed of the specific assets and liabilities of the deceased when he or she passes away. A testator’s will must account for all the assets that will be included in the deceased estate, including personal possessions, real estate, vehicles and investments. A testator must therefore regularly update their will to reflect changes to the deceased estate, such as the acquisition of new property. Amendments can be made to the existing will through codicils (a separate formal document appended to the original will) but it is always safer to completely revise a will periodically to avoid ambiguity. A will does not need to reference every possession of the deceased as, for instance, jointly owned assets automatically transfer to the surviving owner. More typically, a will distributes specific property and then bequeaths the residuary of the estate being any and all other property in the deceased estate.

Creating a will affords a testator some peace of mind over the future of their loved ones. It can be difficult to understand the role of wills and estates in Melbourne and you may need professional assistance. Our solicitors can help you make a will that expresses all your wishes for your assets after your death. On the other hand, if you are a beneficiary or loved one of someone who recently passed away in Melbourne and want to discuss your options, our contested wills team is here to help with any will dispute issues.

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Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first-class honours from the University of Tasmania, a Bachelor of Laws with first-class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade of working in higher education, Nicola joined Go To Court Lawyers in 2020.
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