This memo outlines the formal requirements for a valid will in the State of Victoria. In terms of legislation, the main requirements for a formal will are set out in the Wills Act 1997 (Vic)(the “Act”). Relevant caselaw is also referenced below.
Execution by Testator
- The will must be in writing and signed by the testator or by some other person (an amaneuensis) in the presence of and at the direction of the testator (s.7). Note that “Writing” is defined by s.38 of the Interpretation of Legislation Act 1984 (Vic) as including all modes of representing or reproducing words, figures or symbols in a visible form – it is a broad definition.
- The testator’s signature must be made or acknowledged by the testator in the presence of two or more witnesses present at the same time the testator signs (s.7)
- The testator must sign with the intention of executing a will (s.7) and not merely for the purposes of identification.
- Ensure that the will is signed at the foot as well as on every page by the testator and each of the witnesses.
- Any alterations to the will must be initialed or signed by the testator and both witnesses and the execution clause must refer to the amendment
- It is not necessary that the will state that it has been executed in accordance with section 7 of the Act (s.7)
- A will may be drafted using multiple styles, formats or writing tools however if more than one is used in the same document then a risk arises that parts of the documents may be seen as not being intended to be included in the final version. See (Re Goods of Adams (1872) 2 LR P&D 367) where pencil and ink were used, and it was argued that pencil marks were not intended to form part of the will
- An initial or part of a signature may be sufficient if done with the intention of giving effect to the will, but marks made without such intent are not sufficient (Re Male  VLR 318).
- For an unsigned sheet to be regarded as part of a will it must be shown that it formed part of a single testamentary document. Where all sheets are found fastened at death then they are presumed to be fastened at execution (Marsh v Marsh (1860) 1 Sw & Tr 528; 164 ER 845).
- There must be at least two witnesses who attest and sign the will in the presence of the testator but not necessarily in the presence of each other (s.7)
- It is not necessary that a witness knows that they are witnessing a will, just that they are attesting to the testator’s signature (s.8) As such, a witness need not be shown the contents of the will.
- The witness beneficiary rule has been abolished in Victoria meaning a beneficiary to a will may witness its execution (s.11).
- A witness to a will can be any person who is competent to be a witness in civil proceedings other than a blind person. (s 11)
- A witness cannot simply acknowledge the testator’s signature (where the testator has already signed) but must sign in the presence of the testator.
- There is a rebuttable presumption that a signature placed on the will by a person other than that of the testator is the signature of a witness. In Estate of Bravda  1 WLR 479 the testator signed his home made will in front of two independent witnesses but also directed his daughters to sign the will as well. In this case, the presumption was successfully rebutted.
It is best practice:
- to retain contact details of witnesses for use when the will is proven
- for all pages of the will to be numbered and the pages of the will to be bound or stapled
- for the the testator and witnesses to use the same pen to sign the document and all three should be present at the signing of the document
- not to affix anything (by staple, paperclip or similar fastener) to the will
- not to remove staples or other fasteners from the will once affixed
- avoid having beneficiaries or their spouse witness wills – this may lead to accusations of undue influence.
A will made outside Victoria will be valid if:
- its execution is in accordance with the Act, the law of the jurisdiction in which it was made, the law of the testator’s domicile or the law of the country of which the testator is a national
- in the case of a will executed on board a vessel or aircraft, the will is executed in accordance with the law of the place with which the vessel or aircraft was most closely associated having regard to its registration etc
- in the case of a will that disposes of immovable property, the will is executed in accordance with the internal law in force in the place where the property is situated ( 16A).
Presumption of due execution – Omnia Praesumuntur Rite Esse Acta
- The presumption goes to the question of whether there has been compliance with the formalities.
- If a will is regular on its face and apparently duly executed, there is a rebuttable presumption that the formal requirements have been complied with. However, if the will is irregular on its face then there is less force to the presumption (Re Unsworth; McLeodv Burchall (1974) 8 SASR 312).
- There is a high threshold for the Court to find the existence of a forged will (Ortner v Mewjork; Estate of Shing  NSWSC 1381)
- In Sullivan v Mouglalis; Estate of Wyma  NSWSC 1326 There were suspicious circumstances surrounding the manner in which the will was found, the signature of the deceased, the location of all signatures on the document, the illegibility of the witness signatures and failure of the witnesses to provide any information that might enable them to be identified. The presumption was inadequate and the will found not to be duly executed.
You can also find further information in our: Children and Family Law - Frequently Asked Questions, Children and Family Law, Family Law Property - Frequently Asked Questions, Family Law Property, Child Support, Divorce, Purchasing Property, Selling Property, Subdivisions, Business Sales and Acquisition, Building And Planning, Small Business, Debt Recovery, Leases and Agreements, Power of Attorney, Wills and Estates Planning, Probate and Guardianship sections.
If you require advice, assistance or guidance, in any legal matter, please call today on (03) 59757611 or Enquire Online.