Frequently Asked Questions – Wills and Probate

Will-making Capacity

  • The will-maker understands the nature of the act and its effects. That is a will maker understands the nature of the document and the effect of the document;
  • The will-maker understands the extent of the property which he or she is disposing;
  • The will-maker is able to comprehend and appreciate the claims to which he or she ought to give effect to;
  • The will maker has no disorder of the mind so as to poison his affections, pervert his or her sense of right, or prevent the exercise of his or her natural faculties;
  • No insane delusion shall influence his or her will in disposing of his or her property and bring about a disposal of it which, if the mind had been sound, may not have been made.

The issue of capacity is not assessed solely from a medical point of view. Evidence of the medical condition of the will-maker at the time of making the will is highly relevant. Even with a medical condition, the will-maker can have capacity if the above factors can be shown to be present in the making of the will. The issue of capacity must go to the process of the making of the will. There can be reliable evidence at the time of making the will, for example, where the will-maker had a detailed conversation with his or her solicitor displaying an understanding of his or her assets, his or her family and the effect of the will.

Validity of Wills

Section 7 of the Wills Act says that:

A will is not valid unless—

  • it is in writing, and signed by the will-maker or by some other person, in the presence of, and at the direction of the will-maker; and
  • the signature is made with the will-maker’s intention of executing a will, whether or not the signature appears at the foot of the will; and
  • the signature is made or acknowledged by the will-maker in the presence of two or more witnesses present at the same time; and
  • at least two of the witnesses attest and sign the will in the presence of the will-maker but not necessarily in the presence of each other.

Frequently Asked Questions

What is an executor?

The executor is the person appointed in a Will to handle the legal affairs and tasks in administering the estate. The role of an executor involves numerous important duties and obligations, including most importantly:

  • arranging for the burial or cremation of the body;
  • taking control of all assets and to collect all debts due to the estate;
  • using the money or assets in the estate to pay all the debts of the deceased person;
  • making sure the assets of the estate aren’t wasted;
  • distributing the estate’s assets to the beneficiaries in a timely manner;
  • preparing estate accounts;
  • lodging estate tax returns if required;
  • defending claims against the estate if required.

What is a trustee?

The executor named in the will is invariably the trustee of the estate. The role of a trustee includes:-

  • preserving and managing estate assets for minor beneficiaries until they reach 18 years of age;
  • preserving and managing assets of the estate until a beneficiary attains a specific age as nominated by the testator in the Will;
  • preserving and managing estate assets that have been placed into a testamentary trust established on the death of the testator; and
  • passing accounts and lodging tax returns for trusts created under a Will.

What is a Grant of Probate?

A grant of Probate or probate in short is an order from the Supreme Court of Victoria stating that the Will is proven to be valid and is the last known Will of the deceased person and the executor named in the Will is the person with authority to act as a legal personal representative of the estate of the deceased.

What is a Grant of Letters of Administration?

A grant of Letters of Administration is an order from the Supreme Court of Victoria appointing a person to act as a legal personal representative of the estate when there is no Will. It is also an order made when there is a Will but the executor named in the Will is unable to act or has predeceased the deceased. In such instances, the grant is known as a grant of Letters of Administration with the Will annexed.

What is dying Intestate?

A person dies intestate if the person dies with no will. The estate of the deceased is distributed in accordance with a scheme of distribution (formula) as set out in Probate and Administration Act 1958. The formula allows for distribution in various scenarios with distributions to next to kin and to domestic partners.

What is a Testamentary Trust?

A testamentary trust is a trust created by a valid last Will. It can be a fixed or discretionary trust granting limited estates or interests to various persons or purposes. Testamentary trusts are an important and popular device for estate planning, family provision, asset protection (i.e.- protection of the trust property from creditors of beneficiaries or their spouse), and tax planning.

What is a Codicil?

A codicil is an amendment or addition to a Will after the Will has been made.

What is a Caveat?

A person with an interest in the estate of the deceased may lodge a Caveat (meaning ‘warning’ or ‘caution’) at the Supreme Court against the granting of Probate for the administration of the estate. A Caveat will lapse after six months unless it is renewed by a fresh Caveat.

The person lodging the Caveat must give the court the grounds of the Caveat which usually include claims that:

  • the deceased did not have capacity;
  • was under undue influence when the Will was made;
  • the deceased was a victim of fraud;
  • the deceased had made a later Will; and
  • there were suspicious circumstances in relation to the making of the Will.

The lodgement of a Caveat will only temporarily delay the application for a grant of Probate or Letters of Administration. After the lodgement, legal proceeding will need to be commenced under one or more of the grounds claimed in the time of lodgement.

Testator’s Family Maintenance Claim (TFM Claims or Part IV Family Provision Claims)

There are no rights at common law to alter the distribution of a deceased’s estate otherwise than in accordance with a testator’s wishes. It is only under Part IV – Family Provisions of the Administration and Probate Act that the Supreme Court has the power to alter the Will of a deceased or the intestacy provisions applicable to a deceased’s estate.

A TFM claim must be filed within six months of the Grant of Administration, otherwise the leave of the Court must be obtained. The Administration and Probate Act limits the class of claimant to:

  1. a spouse or domestic partner of the deceased at the time of the deceased’s death;
  2. a child or stepchild of the deceased;
  3. a child of the deceased (including an adopted or stepchild) who, at the time of the deceased’s death, was under the age of 18 years, a full-time student aged between 18 and 25 years or under a disability;
  4. a person who, for a substantial period during the deceased’s life, believed that the deceased was his or her parent and was treated by the deceased as his or her natural child;
  5. a former spouse or domestic partner of the deceased (if a property settlement was not reached with the deceased following their separation);
  6. a registered caring partner of the deceased;
  7. a grandchild of the deceased;
  8. a spouse or domestic partner of a child of the deceased (if the child dies within one year of the deceased’s death); and
  9. a member of the household of which the deceased was (or had been in the past and would have likely been in the near future) also a member.

How the Court Deals with a TFM claim?

There is a requirement for the claimant to prove that the deceased had a “moral duty” to make adequate provision for the claimant’s proper maintenance and support.  In determining whether or not such a “moral duty” exists, the Court must have regard to the terms of the deceased’s Will, any evidence of the reasons a testator made the dispositions in their Will and any other evidence of the deceased’s intentions in relation to providing (or not providing) for the claimant.

In making a Family provision order the Court must have regard to the following:

  • Any family or other relationship between the deceased and the applicant, including the nature of the relationship and where applicable the length of the relationship;
  • Any obligations or responsibilities of the deceased person to the applicant, any other applicant and the beneficiaries of the estate;
  • The size and nature of the estate of the deceased person;
  • The financial resources of the applicant and the financial needs of the applicant;
  • Age, sex and health of the applicant;
  • If the applicant received any gift, transfer or other provision made by the deceased during their life;
  • Any contribution (not for adequate consideration) of the applicant to building up the estate or to the welfare of the deceased or the family of the deceased;
  • Whether the applicant was being supported/maintained by the deceased person before that person’s death either wholly or partly and, where the court considers relevant, the extent to which and the basis upon which the deceased has assumed that responsibility;
  • The liability of any other person to maintain the applicant;
  • The character and conduct of the applicant; and
  • Any other matter the court considers relevant.