Wills & Probate

Your trused lawyers and solicitors in St Kilda

A Will is a legal document by which you direct how your assets will be disposed when you die.

 You should ensure that you have a valid Will at all times to make sure that your assets are distributed in accordance with your wishes.

 Without a Will your assets will be distributed according to a rigid formula laid down in the Administration & Probate Act and you will have no say how your assets will be distributed.

 Upon death, without a Will, your spouse (which includes a separated spouse) will receive the first $100,000 of your Estate, all of your personal chattels and 1/3 of the balance of your Estate. 

If you have children, those children will receive the remaining 2/3 share equally between them.  Your spouse has the option to buy your interest in the matrimonial home at the date of your death.  

If you are not married and have no children then your closest living relatives will be beneficiaries.

These are your parents if they are alive and if they are not alive then your siblings if you have any.  If you do not have any siblings then your next closest relatives which may be nieces, nephews, grandparents or cousins. 

If you have no relatives the government inherits your Estate.

 Without a Will an Administrator will be appointed by the court to distribute your assets.  The court may allow that person to take a commission up to a maximum of 5% of the value of your Estate. 

On the other hand, if you have a Will you choose the Executor, the person who administers your Estate.

 If you have children under the age of 18 years, you can appoint the guardian of those children and direct how your Estate assets should be invested pending them reaching that age.

 If you have children or other beneficiaries with disabilities, alcohol or drug-related problems or who is a spendthrift, you can set up a Testamentary Trust so that that beneficiary’s share is preserved from his or her creditors or from that beneficiary.

 In some instances there are taxation advantages to beneficiaries if your Estate is left to them via a Testamentary Trust.  In some instances income of a Trust  Estate can be taxed at adult rates rather than the penal tax provision set out in Division 6AA of the Income Tax Assessment Act.

 A Will needs to be in writing and signed by the Will maker in the presence of two witnesses who are present at the same time and who must also sign the Will. 

The Will is an important legal document and legal advice should be sought regarding its content.  It is a false economy to do your own Will without legal assistance.

 Anyone over the age of 18 years may make a Will provided they have mental capacity.  A minor can make a Will if married or if a Court authorises it.

 Marriage revokes a Will.  Separation from a spouse does not revoke a Will.  Upon Divorce any gifts to your divorced spouse and any appointment of that spouse as Executor is automatically revoked. 

You should therefore make a new Will after separation and definitely after Divorce.

 If marrying, you can make a Will in contemplation of that marriage but that has to be made clear in the Will.  

 The lawyer can give you advice about how to limit the chances of your Will being contested.

 Wills are important documents and the originals should be kept in a safe place.  You should inform your executors of their appointment and the whereabouts of the Will so that they can be easily located upon your death.

 To ensure that your testamentary wishes are given effect, you should contact a lawyer if any of the following events occur or if you desire for any reason to alter your Will:

  • if you change your name;
  • if the Executor named in the Will dies or becomes unfit to act because of age, failing health or ceases to reside in Victoria or if a more suitable person becomes available to hold such office e.g. your children become of age;
  • if a beneficiary dies;
  • if you marry or re-marry after the date of making your Will

Lawyers in St Kilda

Contesting a Will

 Pursuant to Section 91(1) of the Administration & Probate Act 1958, a Court may make provision from the Estate of a deceased person for the proper maintenance and support of a person for whom the deceased had responsibility to make provision. 

 The relevant Statutory considerations the Court is to take into account in such proceedings are as follows:

  • The relationship between the deceased and the person making the claim, including the length of the relationship;
  • The size and nature of the Estate;
  • The financial resources and financial needs of any claimant and of any beneficiary of the Estate at the time of the hearing and for the foreseeable future;
  • Any physical, mental or intellectual disability of any claimant;
  • The claimant’s age;
  • Any contribution of the claimant in the building up of the deceased’s Estate or deceased’s family’s welfare;
  • Any benefits previously given by the deceased to the claimant;
  • Whether the deceased continued to maintain a claimant subsequent to marital separation;
  • The liability of any other person to maintain the claimant;
  • The character and conduct of any person making a claim; and
  • Any other matter the Court considers relevant.

In addition to the Statutory considerations, the Court still applies the test of whether and if so what provision a wise and just testator would have thought it their moral duty to make in the interest of the claimant. 

The Courts have made it clear that a claimant’s needs must be demonstrated at the time of any Court hearing and have decided in cases where the party seeking support are capable of supporting themselves comfortably and are likely to do so, there may be little or no reason for a deceased to make provision for their support.