Wills and Lifetime Planning

3 Matter Plans Included

ALERT - The 2026 Budget foreshadows tax changes relevant to testamentary discretionary trusts. See Looking to the Future in the Reference materials folder.

The 2026 Budget foreshadows tax changes relevant to testamentary discretionary trusts. See Looking to the Future in the Reference materials folder.
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Full Commentary - Wills (VIC)
Reference materials
- AI Prompts
  
  An AI prompt defines a specific task for AI to perform, like drafting a particular document, and provides clear instructions on how to execute that task. The goal is for the AI to quickly create a useful first draft of a document, which the user verifies and refines into a final version, ultimately ...
  This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
- Looking to the Future
- Electronic Signing and Witnessing
- 101 Succession Answers (VIC)
- 101 Costs Answers
- Papers and articles - Wills and estates
  - Estate planning - An exciting opportunity for small law firms
  - Executor's commission 1 - Executor's commission and the professional executor
  - Executor's commission 2 - Horns of a dilemma
  - Executor's commission 3 - A fiduciary duty
  - Improving written submissions - A paper by Judge Alan Troy
  - Plain language – A paper by the Hon. Michael Kirby AC CMG
  - To accept or not accept instructions in urgent will matters
  - Wills and estates - Death in the house
- Further information
Overview

A will is a document containing a person’s instructions for the distribution of their property and assets after death. If a person dies without a valid will, their estate is distributed according to the statutory rules of intestacy. Because a person who lacks testamentary capacity cannot make a ...
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Summary of the process

The usual steps in a will matter are:
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A. Getting the matter underway
- File cover sheet - Wills and lifetime planning
- To do list - Wills
- First steps
- Client details and verifying identity
- Retainer instructions - Wills and lifetime planning - For individuals
- Retainer instructions - Wills and lifetime planning - For couples
- Conflict of interest check
- Taking instructions for wills
  
  Obtaining written instructions is vital for a will matter. In some cases, the instructions may constitute an informal will. See Informal wills. The Retainer Instructions – Wills and Lifetime Planning – For Individuals and Retainer Instructions – Wills and Lifetime Planning – For Couples on the ...
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- Informal wills
  
  An informal will might be required if circumstances suggest a client may lose testamentary capacity or die before they can execute a formal will. Under s 9 of the Wills Act 1997 a court may admit to probate a will that fails to meet the formal requirements if satisfied that the document ...
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- Testamentary capacity
  
  Although not often an issue, the first question for a lawyer to consider when preparing a will is whether the client has testamentary capacity. The leading authority concerning testamentary capacity is Banks v Goodfellow (1870) LR 5 QB 549, 565. In that case, Cockburn CJ stated at 565:
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- Testamentary capacity checklist
- Initial letter to client enclosing costs agreement
- Letter to individual client to confirm instructions
- Letter to spouse clients to confirm instructions
- Costs
  
  Estimating the cost of preparing a will can be difficult. The extent of work the client will require is often unclear at the outset. While many wills are simple, the complexity of a client’s financial position or family arrangements can mean hours spent taking and confirming instructions and ...
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- Costs agreement - VIC
- Scope of work - Wills and lifetime planning
- Standard costs disclosure form for clients - Fees under $3000
- Time and costs estimates
- If required - Updating costs disclosure
  - Letter to client updating costs disclosure
  - Charge securing costs
  - Guarantee securing costs
  - Costs disclosure before settlement in litigation matters
    
    Letter to client - Costs disclosure before settlement - NSW, VIC, and WA
    
    Letter to client - Costs disclosure before settlement - QLD, SA, TAS, ACT, and NT
- Affidavit
- Example content - Affidavit of medical practitioner as to capacity
- If required - Advice to client on testamentary discretionary trusts
  - Letter to client advising on testamentary trusts
  - Benefits of testamentary discretionary trusts
- If required - Authority for deeds
  - Letter to solicitor with authority for deeds
  - Authority to solicitor to forward deeds
- General deeds, agreements, execution clauses, and statutory declarations
  - Deeds and Agreements
  - Deeds
    
    Deed for general use
    
    Deed of guarantee
    
    Deed of release
    
    Confidentiality deed
    
    General deed of indemnity
    
    Deed of assignment of agreement
    
    Deed of gift
    
    Library of standard clauses for deeds
    
    Amendment
    
    Confidentiality for defined information - All parties
    
    Confidentiality for defined information - One party
    
    Confidentiality for terms of deed - All parties
    
    Confidentiality for terms of deed - One party
    
    Costs
    
    Counterparts
    
    Dispute resolution
    
    Events beyond control
    
    Governing law and jurisdiction
    
    Interpretation
    
    No assignment
    
    Notices
    
    Severance
    
    Waiver
    
    Whole agreement
  - Agreements
    
    Agreement for general use
    
    Heads of agreement
    
    Non-disclosure agreement - Formal
    
    Non-disclosure agreement - Informal
    
    Library of standard clauses for agreements
    
    Amendment
    
    Confidentiality for defined information - All parties
    
    Confidentiality for defined information - One party
    
    Confidentiality for terms of agreement - All parties
    
    Confidentiality for terms of agreement - One party
    
    Costs
    
    Counterparts
    
    Dispute resolution
    
    Events beyond control
    
    Governing law and jurisdiction
    
    Interpretation
    
    No assignment
    
    Notices
    
    Severance
    
    Waiver
    
    Whole agreement
  - Execution clauses
    
    Library of execution clauses for agreements
    
    Attorney
    
    Authorised officer
    
    Company
    
    Company - Sole director
    
    Individual
    
    Individual - No witness
    
    Library of execution clauses for deeds
    
    Attorney
    
    Authorised officer
    
    Company
    
    Company - Sole director
    
    Individual
  - Statutory declarations
    
    Commonwealth statutory declaration
    
    Statutory declaration - blank - ACT
    
    Statutory declaration - blank - NSW
    
    Statutory declaration - blank - VIC
    
    Statutory declaration - blank - QLD
    
    Statutory declaration - blank - TAS
    
    Statutory declaration - blank - SA
    
    Statutory declaration - blank - WA
    
    Statutory declaration - blank - NT
    
    Standard annexure note for documents
B. Initial will considerations
- Formal requirements
  
  The formal requirements for a valid will as set out in s 7 of the Wills Act 1997 are that:
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- Revocation and revival
- Executors and trustees
  
  An executor under a will is a trustee of the estate's assets. Executors hold the estate on trust, whether or not they are also appointed as trustees of specific trusts in the will. For example, if a beneficiary under the will cannot take their gift, for example, because they are under 18 years ...
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- Burial and cremation
  
  Consistent with their burden of burying the deceased, an executor has a common law right to possession of the deceased's body. The estate's administrator does not have this burden or right. Following the appointment of executors, testators often provide instructions in the will as to burial or ...
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- Guardianship of minor children
  
  A direction in a will for guardianship of minor children is non-binding. If necessary, the Federal Circuit and Family Court of Australia can make a final decision about the care of children, based on the child’s best interests. Subject to any contrary orders of the court, a surviving parent has the ...
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- Disposition of property
  
  The dispositions of property under a will can potentially involve consideration of:
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C. Other estate planning considerations
- Superannuation death benefits and nomination
- Binding death benefit nomination notice
- Testamentary discretionary trusts
- Special disability trusts
- Blended families
  
  A frequent issue for testators in a second marriage or a relationship that includes children from both the current and a previous marriage or relationship is how to leave their estate to their current spouse or partner but also ensure that the children are provided for. There is an inherent tension ...
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- Taxes and duty
  
  A will can give rise to various taxation implications, including transfer duty, land tax, and capital gains tax. Lawyers who do not practise in this area are best to advise the client to seek appropriate advice from their accountant or taxation advisor before finalising the will and specifically ...
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- Family provision claims
  
  When giving instructions for a will, testators need to understand the possibility of a family provision claim against their estate. Section 91 of the Administration and Probate Act 1958 provides that, if the court considers the deceased did not adequately provide for the proper maintenance and ...
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- Intestacy
  
  Part 1A of the Administration and Probate Act 1958 determines the distribution rules for an estate of a person who dies without a will. In these circumstances, the deceased is known as the intestate. A client considering their will needs to understand what would happen to their estate if they ...
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- Multi-jurisdictional estates and international wills
- Challenging the validity of a will
  
  Challenging a will questions its validity, as opposed to contesting a will, which questions the fairness of its provisions. While each Australian state and territory has laws concerning wills, the circumstances and processes when challenging a will are similar across all the states.
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D. The will
- Wills for an individual
  - Individual will
  - Individual will with spouse as trustee
  - Individual will with blended family
- Wills for spouses
  - Client 1 will for spouses with client 2 as trustee
  - Client 2 will for spouses with client 1 as trustee
- Wills for blended families
  - Blended families
    
    A frequent issue for testators in a second marriage or a relationship that includes children from both the current and a previous marriage or relationship is how to leave their estate to their current spouse or partner but also ensure that the children are provided for. There is an inherent tension ...
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  - Individual will with blended family
  - Client 1 will for blended families with client 2 as trustee
  - Client 2 will for blended families with client 1 as trustee
- Wills creating testamentary discretionary trusts
  - Testamentary discretionary trusts
  - Individual will creating testamentary discretionary trust
  - Individual will creating multiple testamentary discretionary trusts
  - Client 1 will creating testamentary discretionary trust with client 2 as executor
  - Client 2 will creating testamentary discretionary trust with client 1 as executor
  - Client 1 will creating multiple testamentary discretionary trusts with client 2 as executor
  - Client 2 will creating multiple testamentary discretionary trusts with client 1 as executor
  - Family trust election, revocation or variation 2022
- Prompt comparing retainer instructions with draft wills
- Library of clauses, deeds, contracts, and codicils
  - Asset management clause
  - Assets - Quarantining assets from a nominated jurisdiction
  - Beneficiaries - Excluding beneficiaries - Some reasons for excluding beneficiaries
  - Beneficiaries - Separate fund for particular beneficiary - Clause to establish trust
  - Body - Burial in reserved plot
  - Body - Burial with modest funeral
  - Body - Cremation
  - Body - Funeral service location
  - Body - Medical research purposes
  - Body - Medical research purposes excluded
  - Body - Organs for donation or research purposes
  - Charity - Bequests to charity
  - Civil union - Will in contemplation of civil union
  - Codicil
  - Deed not to change will
  - Deed not to change will in favour of mortgagee
  - Deemed disclaimer of an interest under this will
  - Divorce - Clause in contemplation of divorce
  - Gift of business to employees
  - Gift to spouse with reasons for children of previous marriage
  - Guardians - Appointment of guardians
  - Guardians - Appointment of guardians when other parent has not survived
  - Home - Right of occupation of home
  - Hotchpot - Excluding hotchpot
  - Hotchpot - Including hotchpot
  - Life estate clause
  - Life insurance used for debts
  - Marriage - Will in contemplation of marriage
  - Monthly payment - Establish a monthly payment not an annuity
  - Mutual wills - Contract to make mutual wills
  - Option - Grant an option to purchase to a beneficiary
  - Pets - Gift of pets
  - Pets - Gift pets with trust provisions
  - Residue - Childs spouse, and grandchildren
  - Solicitor - Direction for appointment of solicitors
  - Solicitor executor - Clause to charge fees
  - Specific bequest of digital rights
  - Testamentary discretionary trust provisions - Concise
  - Testamentary discretionary trust provisions - Extensive
  - Testamentary discretionary trust provisions creating several trusts
  - Trustee - Separate trustee for minor beneficiary
- If required - Special disability trust - Deed, variation, and clauses
  - Special disability trusts
  - Special disability trust deed inter vivos
  - Special disability trust deed by will
  - Deed of variation for special disability trust
  - Clause to leave money or property via will to pre-existing special disability trust
  - Clause establishing special disability trust by will with trust deed annexed - Executors as trustees
  - Clause establishing special disability trust by will with trust deed annexed - Appointing trustees
  - Clause to establish special disability trust - Executors as trustees
  - Clause to establish special disability trust - Executors to appoint trustees
  - Clause to establish special disability trust and discretionary trust for a beneficiary - Executors as trustees
  - Clause to establish special disability trust and discretionary trust for a beneficiary - Appointing trustees
- Library of attestation clauses
  - Blind
  - Can read but unable to write
  - Can read but unable to write or make a mark
  - Can write but unable to read
  - Unable to read but can speak and understand English and can sign
  - Unable to read or speak English but can sign
  - Unable to read or write
  - Unable to speak or read English or write
- Remote execution procedure attestation clauses
  - Remote execution procedure - Special witness
  - Remote execution procedure - Witness
- If required - Multi-jurisdictional estates and international wills
  - Multi-jurisdictional estates and international wills
  - International will certificate
E. Execution
- Letter advising client that documents are ready for signing
- Letter reminding client that documents are ready for signing
- Signing the will
  
  Under s 7 a will must be signed by:
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- Evidence of signing
  
  The purpose of having witnesses to a will is so they can give evidence of the circumstances of the will’s execution. Three practices provide good evidence that a will has been properly signed and executed. They include:
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- Gifts to witnesses
  
  A witness or their spouse or partner are not disqualified from taking a benefit under the will: s 11 of the Wills Act 1997. Disinterested witnesses are preferable, however, because:
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- Solicitors as witnesses
  
  Commonly, a solicitor who has drawn up a will also is a witness to its execution. This is appropriate and even optimal as a solicitor makes an excellent witness. The same considerations apply to solicitors who stand to benefit under a will as to any other witness. Section 11 of the Wills Act ...
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- If required - Sending a will to a client for signing
  - Sending a will to a client for execution
    
    If a client wishes to have the will sent to them for execution, it is helpful to provide them with assistance regarding the process. Otherwise, the will may not be properly executed and not be valid. The precedent Enclosure – Instructions for Signing on the matter plan can be sent to the client ...
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  - Letter to client with will to sign
  - Instructions for signing
- Remote execution by audiovisual link
  
  Sections 8A–8D of the Wills Act 1997 provide a remote execution procedure for wills by audio-visual link. Using an audio-visual procedure does not limit other existing statutory requirements: s 8D. This environment may require increased consideration of capacity, or the potential for ...
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F. Finalising the matter
- Storage
  
  A will that is to be kept by the firm in safe custody is entered into a safe custody register and placed in a trackable envelope. It should never be kept only on the file. The testator should be provided with a copy of the will that includes the firm’s contact details either on a cover sheet or in ...
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- Revising the will
  
  Testators should be encouraged to review their will regularly. While not significant in the case of small estates or when a testator’s estate is to pass to their spouse and then their issue, a review may be important in other situations. Events that may lead to a change of a will include:
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- Letter to client finalising the matter
- Example invoice incorporating notification of client's rights - VIC
- Invoice recital - Wills
- Closing the file
- File closing checklist
Comments and suggestions for By Lawyers

ALERTS - Nil
Full Commentary - Powers of Attorney and Advance Care Directives (VIC)
Reference materials
- AI Prompts
  
  An AI prompt defines a specific task for AI to perform, like drafting a particular document, and provides clear instructions on how to execute that task. The goal is for the AI to quickly create a useful first draft of a document, which the user verifies and refines into a final version, ultimately ...
  This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
- Looking to the Future
- Electronic Signing and Witnessing
- 101 Succession Answers (VIC)
- 101 Costs Answers
- Recognition of Interstate Powers - Comparative Table
- Papers and articles - Wills and estates
  - Estate planning - An exciting opportunity for small law firms
  - Executor's commission 1 - Executor's commission and the professional executor
  - Executor's commission 2 - Horns of a dilemma
  - Executor's commission 3 - A fiduciary duty
  - Improving written submissions - A paper by Judge Alan Troy
  - Plain language – A paper by the Hon. Michael Kirby AC CMG
  - To accept or not accept instructions in urgent will matters
  - Wills and estates - Death in the house
- Further information
Overview

As a matter of good practice when preparing wills, draft enduring powers of attorney to provide for the unforeseen circumstance that might see the principal unable through sickness or accident to run their affairs or have a say in their medical treatment. As with any legal document, the client must ...
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A. Getting the matter underway
- Legislation
  
  Powers of Attorney Act 2014 The Powers of Attorney Act 2014 provides for:
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- File cover sheet - Wills and lifetime planning
- First steps
- Client details and verifying identity
- Retainer instructions - Wills and lifetime planning - For individuals
- Retainer instructions - Wills and lifetime planning - For couples
- Conflict of interest check
- Initial letter to client enclosing costs agreement
- Costs agreement - VIC
- Scope of work - Wills and lifetime planning
- Standard costs disclosure form for clients - Fees under $3000
- Time and costs estimates
- If required - Updating costs disclosure
  - Letter to client updating costs disclosure
  - Charge securing costs
  - Guarantee securing costs
  - Costs disclosure before settlement in litigation matters
    
    Letter to client - Costs disclosure before settlement - NSW, VIC, and WA
    
    Letter to client - Costs disclosure before settlement - QLD, SA, TAS, ACT, and NT
- General deeds, agreements, execution clauses, and statutory declarations
  - Deeds and Agreements
  - Deeds
    
    Deed for general use
    
    Deed of guarantee
    
    Deed of release
    
    Confidentiality deed
    
    General deed of indemnity
    
    Deed of assignment of agreement
    
    Deed of gift
    
    Library of standard clauses for deeds
    
    Amendment
    
    Confidentiality for defined information - All parties
    
    Confidentiality for defined information - One party
    
    Confidentiality for terms of deed - All parties
    
    Confidentiality for terms of deed - One party
    
    Costs
    
    Counterparts
    
    Dispute resolution
    
    Events beyond control
    
    Governing law and jurisdiction
    
    Interpretation
    
    No assignment
    
    Notices
    
    Severance
    
    Waiver
    
    Whole agreement
  - Agreements
    
    Agreement for general use
    
    Heads of agreement
    
    Non-disclosure agreement - Formal
    
    Non-disclosure agreement - Informal
    
    Library of standard clauses for agreements
    
    Amendment
    
    Confidentiality for defined information - All parties
    
    Confidentiality for defined information - One party
    
    Confidentiality for terms of agreement - All parties
    
    Confidentiality for terms of agreement - One party
    
    Costs
    
    Counterparts
    
    Dispute resolution
    
    Events beyond control
    
    Governing law and jurisdiction
    
    Interpretation
    
    No assignment
    
    Notices
    
    Severance
    
    Waiver
    
    Whole agreement
  - Execution clauses
    
    Library of execution clauses for agreements
    
    Attorney
    
    Authorised officer
    
    Company
    
    Company - Sole director
    
    Individual
    
    Individual - No witness
    
    Library of execution clauses for deeds
    
    Attorney
    
    Authorised officer
    
    Company
    
    Company - Sole director
    
    Individual
  - Statutory declarations
    
    Commonwealth statutory declaration
    
    Statutory declaration - blank - ACT
    
    Statutory declaration - blank - NSW
    
    Statutory declaration - blank - VIC
    
    Statutory declaration - blank - QLD
    
    Statutory declaration - blank - TAS
    
    Statutory declaration - blank - SA
    
    Statutory declaration - blank - WA
    
    Statutory declaration - blank - NT
    
    Standard annexure note for documents
B. Powers of attorney
- Powers of attorney
  
  Section 151 Powers of Attorney Act 2014 preserves a valid power of attorney under the Powers of Attorney Act 2014.
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- Recognition of interstate instruments
  
  A power of attorney is effective in Victoria, even if made in another state or territory. An enduring power of attorney made in another state or territory is recognised in Victoria: s 138.
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- Capacity
  
  There is no specific reference to capacity in the general non-enduring power of attorney; however, a general power of attorney ceases to be effective if the principal loses capacity. Section 4 of the Powers of Attorney Act 2014 defines decision-making capacity.
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- Attorneys
  
  Who cannot be an attorney? The Act excludes certain classes of persons from being an attorney, such as:
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- The scope of an attorney’s authority
  
  Limited powers A power of attorney containing specific conditions and limitations is considered a limited power of attorney. Whether general non-enduring or enduring, the attorney’s authority is restricted to carry out only the acts specifically listed within the power of attorney, subject again to ...
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- Prescribed forms
  
  The Schedule to the Act contains the prescribed form for the General Non-Enduring Power of Attorney. The schedule to the regulations contains prescribed forms for Enduring Power of Attorney, as well as the appointment of the supportive attorney and forms for resignation and revocation.
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- General Non-Enduring Power of Attorney
- Lawyer's notes - General non-enduring powers of attorney
- Enduring Power of Attorney
- Enduring Power of Attorney Appointment - interactive short form
- Enduring Power of Attorney Appointment - interactive long form
- Lawyer's notes - Enduring powers of attorney
- Execution and witnessing a power of attorney
  
  General non-enduring power of attorney A general non-enduring power of attorney is executed as a deed. It does not require a witness; however, prudence would dictate otherwise.
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- Library of clauses for power of attorney
  - Company appoint attorney to conduct the business of the company
  - Access to will
  - Company appoint attorney to execute documents
  - Director appointing substitute during absence
  - Discharge of mortgage
  - Purchase of real property
  - Mortgage
  - Sale of real property
  - Application for probate or administration - Executor out of jurisdiction
- Land transactions and registrations
  
  A power of attorney appointing enduring attorneys for personal matters is not sufficient for instruments relating to land. It must be an appointment for financial matters, or financial and personal matters. A supportive attorney appointment does not grant power to execute instruments relating to ...
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- When do powers of attorney come into effect?
  
  General non-enduring power of attorney A general non-enduring power of attorney comes into effect when made, or otherwise at a time, or in circumstances, specified in the instrument: s 10 Powers of Attorney Act 2014.
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- Corporations and directors
  
  Corporations The Corporations Act 2001 does not specify a corporation's power to grant a power of attorney. However, a corporation may expressly or impliedly authorise an agent to enter into a contract on its behalf. Further, a corporation has all the powers of a legal person, including the power ...
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- Revocation and resignation
  - Revocation and resignation of power of attorney
    
    Revocation of a general non-enduring power of attorney A general non-enduring power:
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  - Letter to attorney with revocation
  - Revocation of general non-enduring power of attorney
  - Revocation by Principal of Enduring Power of Attorney or Appointment of Attorney or Alternative Attorney
  - Lawyer's notes - Revocation by principal of enduring powers of attorney
  - Resignation by Attorney or Alternative Attorney
  - Notification by Attorney
- Conflicts and concurrent authorisations
  
  If the principal appointed an attorney the power to make decisions about their health care, in an instrument executed before the current legislation came into effect, the power continues, and the attorney can consent or withhold consent to medical or dental treatment. The patient's best interests ...
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- Victorian Civil and Administrative Tribunal
  
  VCAT is the jurisdictional forum for matters concerning an enduring power of attorney and a supportive attorney appointment, including giving an advisory opinion and enquiring into any other matter VCAT considers necessary. Part 8 of the Powers of Attorney Act 2014 provides VCAT can also order that ...
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C. Supportive attorney appointments
- Supportive attorney appointment
  
  A principal can appoint a supportive attorney to support them and effect their decisions: s 84. The principal must still have decision-making capacity but may need support in exercising that capacity. It is important to note that the supportive attorney does not make decisions for the ...
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- Eligibility requirements
  
  There are eligibility requirements as with the enduring power of attorney. These are contained in s 91, namely, a person is eligible to be appointed as a supportive attorney if the person is an individual–
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- Extended definition of capacity
  
  Section 86(2) includes an extended definition of capacity beyond that defined in s 4 for these appointments:
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- Form
  
  The principal must make the appointment in the prescribed form or to the like effect of the prescribed form.
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- The scope of a supportive attorney’s authority
  
  A principal can authorise a supportive attorney to:
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- Duties of supportive attorneys
  
  Duties are similar to those concerning enduring powers of attorney, with modifications, such as that the supportive attorney must discuss anything about a supported decision with the principal in a way the principal can understand and that will assist the principal in making the decision: ...
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- Multiple attorneys under a supportive attorney appointment
  
  The principal can appoint more than one supportive attorney. If more than one, they will act separately, and the principal can specify the matters in respect to which each supportive attorney is to act: s 92. However, according to Clause 92 of the Explanatory Memorandum:
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- Appointment of Supportive Attorney
- Lawyer's notes - Appointment of supportive attorney
- Executing and witnessing a supportive attorney appointment
  
  The principal’s appointment of a supportive attorney must be signed at the principal's direction in the presence of two witnesses, concurrently: ss 96 and 3(4). Of the two witnesses, at least one must be a person authorised to witness the signing of statutory declarations within the meaning of ...
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- When do supportive attorney appointments come into effect?
  
  A time, circumstance or occasion can be specified for commencement, failing which the appointment commences once made. It will be effective only for the supportive attorney or alternative supportive attorney when formally accepted in the prescribed form. The supportive attorney appointment does not ...
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- Revocation and resignation
  - Revocation and resignation of a supportive attorney appointment
    
    Revocation Concerning a supportive attorney, so far as it gives power to a supportive attorney, the appointment is revoked:
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  - Letter to supportive attorney with revocation
  - Revocation by Principal of Supportive Attorney Appointment or Appointment of Supportive Attorney Appointment or Alternative Supportive Attorney
  - Resignation by Supportive Attorney or Alternative Supportive Attorney
  - Notification by Attorney
D. Advance care directive, medical treatment decision maker and support person appointment
- Legislation
  
  Powers of Attorney Act 2014 The Powers of Attorney Act 2014 provides for:
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- In general
  
  The Victorian Government Health and Human Services’ Guide to the Medical Treatment Planning and Decisions Act 2016 for health practitioners notes that there is a presumption that people have capacity to make their own decisions and medical decisions should only be made by someone else when the ...
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- Capacity
  
  There is no specific reference to capacity in the general non-enduring power of attorney; however, a general power of attorney ceases to be effective if the principal loses capacity. Section 4 of the Powers of Attorney Act 2014 defines decision-making capacity.
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- Advance care directive
  - Advance care directive
    
    Informal advance care instructions given or made before 12 March 2018 will be treated as a statement of values and preferences, not binding directives. Advance care directives have now been formalised and constitute the principal’s binding instructions or preferences and values concerning the ...
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  - Who can give an advance care directive
    
    Any person, including a child, can give an advance care directive provided the prerequisites in Part 2 of the Act are met, including capacity and understanding of each statement in the directive: s 13. However, only an adult may appoint a medical treatment decision-maker.
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  - Advance care directives in general
    
    There are two types of directives, instructional or binding, and values, to be considered. A principal may include both or either of these directives. Values directives include matters such as what matters most is the person’s life, unacceptable outcomes after medical treatment, particular concerns ...
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  - Advance care directive
  - Advance care directive - Signing by direction
  - If required - Interpreter's certificate
    
    Interpreter's certificate
  - Executing and witnessing an advance care directive
    
    The principal must have decision-making capacity. The principal or an independent adult at the principal's direction must execute the document in the presence of two witnesses, all present and executing concurrently.
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  - When does the advance care directive come into effect?
    
    The directive is to be applied once the person loses decision-making capacity. While they have decision-making capacity, they can make their own decisions which may not necessarily be those they have included in the directive. The directive comes into force when made and remains in force until any ...
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  - Revocation of advance care directive
    
    Revocation
    
    A principal may revoke an enduring power while they have capacity, or if expressed to operate for a specified period, is revoked at the end of the specified period. Otherwise, the power ends on the principal's death. The revocation must be in the prescribed form in the Schedule to the Rules or the ...
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    Revocation of advance care directive
- Medical treatment decision maker appointment
  - Medical treatment decision-makers
    
    An appointment of a medical treatment decision-maker to deal with matters of a medical nature survives the principal's incapacity. It is often given by spouses to each other or by older parents to adult children to be used if the principal cannot make medical decisions. There can be more than one ...
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  - If required - Interpreter's certificate
    
    Interpreter's certificate
  - Executing and witnessing a support person appointment
    
    The principal must have decision-making capacity as defined. The document must be executed by the principal or by an eligible person, signing in the presence of and at the direction of the principal and in the presence of two witnesses, all present and executing at the same time: ss 37, 33 and ...
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  - When does the appointment of medical treatment decision maker come into effect?
  - Appointment of medical treatment decision maker
  - Appointment of medical treatment decision maker - Signing by direction
  - Revocation and resignation of medical treatment decision maker
    
    Revocation
    
    A principal may revoke an enduring power while they have capacity, or if expressed to operate for a specified period, is revoked at the end of the specified period. Otherwise, the power ends on the principal's death. The revocation must be in the prescribed form in the Schedule to the Rules or the ...
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    Letter to appointee with revocation
    
    Revocation of medical treatment decision maker
    
    Resignation of medical treatment decision maker
- Support person appointment
  - Support person appointment
    
    Any person with decision-making capacity, including a child, can appoint one other person, including a child, as their support person. Note only one support person can be appointed at one time: s 31. The support person does not make decisions but instead supports the principal in making, ...
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  - If required - Interpreter's certificate
    
    Interpreter's certificate
  - Executing and witnessing a support person appointment
    
    The principal must have decision-making capacity as defined. The document must be executed by the principal or by an eligible person, signing in the presence of and at the direction of the principal and in the presence of two witnesses, all present and executing at the same time: ss 37, 33 and ...
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  - When does the support person appointment come into effect?
    
    The support person appointment comes into force on the day it is made and remains in force until revoked or the support person resigns: ss 38 and 39. However, it will not be effective until accepted by the appointee: s 33.
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  - Appointment of support person
  - Revocation and resignation of support person appointment
    
    Revocation and resignation of a support person appointment
    
    Revocation The principal with capacity may revoke a support person appointment; otherwise, it ends on the principal's death. Any later appointment of a support person revokes a support person appointment: s 35.
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    Letter to appointee with revocation
    
    Revocation of support person
    
    Resignation of support person
E. Finalising the matter
- Letter advising client that documents are ready for signing
- If required - Instructions for signing
  - Instructions for signing
- Finalising the matter
  
  As with wills, discuss that clients revise their arrangements as their situation changes, particularly the death or incapacity of a nominated attorney or agent or a client’s separation, divorce or (re)marriage. Retain a copy of the document, if not the original, if a client needs to execute a ...
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- Letter to client finalising the matter
- Letter to attorney re general power - Commencement as per commencement clause
- Letter to attorney re enduring power - Commencement as per commencement clause
- Letter to supportive attorney advising of their role
- Letter to support person advising of their role
- Letter to medical treatment decision maker advising of their role
- Example invoice incorporating notification of client's rights - VIC
- Closing the file
- File closing checklist
Comments and suggestions for By Lawyers

101 Succession Answers (VIC)
Estates
- Accounts
  
  Duty to keep accounts The personal representative has a duty to maintain records or accounts of how the estate is administered, in accordance with their undertaking to the court when applying for a grant: rr 2.04(2)(c) and 4.04(2)(c) of the Supreme Court (Administration and Probate) Rules ...
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- Ademption of gifts
  
  The testamentary gift of an asset is adeemed if the asset no longer exists on the death of the testator. If after making the will the testator sells the asset the question arises whether the proceeds of the sale should go to the beneficiary to satisfy the bequest.
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- Administration
  
  Administration is defined in s 5 of the Administration and Probate Act 1958 as follows:
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- Administration bond or guarantee
  
  Section 57 of the Administration and Probate Act 1958 provides that the court or the registrar may require a surety to the value of the estate, against loss as a consequence of a breach by the administrator of their duties. The section does not apply to State Trustees and certain others: ...
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- Administrator
  
  An administrator is defined in s 5(1) of the Administration and Probate Act 1958 as a person to whom administration is granted. Between the date of death and the date of a grant of letters of administration, the estate of an intestate deceased vests in State Trustees: s 19.
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- Application for a grant of probate or letters of administration
  
  Any need to apply A grant is not always required when there is a valid will, or when there is no will, or there is a will but no appointed executor or when the will does not deal with the whole of the estate. There is no legislative requirement to apply for a grant in every case.
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- Application to revoke a grant of probate or letters of administration
  
  Order 11 of the Supreme Court (Administration and Probate) Rules 2023 deals with an application for revocation. Common grounds for revocation include the discovery of a later will, lack of testamentary capacity, and fraud in obtaining the original grant. In O'Brien v McCormick [2005] NSWSC 619 ...
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- Assets and liabilities of the estate
  
  Beneficiary in possession of estate property It is the duty of the personal representative to get in the estate, including any property held by beneficiaries.
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- Beneficiaries
  
  Beneficiary liable for a debt to the estate If a beneficiary is personally liable for a debt owed to the estate, then the rule in Cherry v Boultbee (1839) 4 Myl & Cr 442; 41 ER 771 applies. The beneficiary is not entitled to participate in the distribution of the estate without paying their ...
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- Bequests and gifts
  
  A bequest is a gift by will. A specific bequest is a gift of specified property such as a watch.
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- Burials, cremations, and funerals
  
  A deceased’s wishes It is quite common for a will to include directions concerning the disposal of the deceased’s remains and their wishes for their funeral service. Such directions and wishes do not bind the personal representative.
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- Capacity
  
  A testator must have testamentary capacity at the time the will is executed in order to be valid. If it is alleged that the testator did not in fact have testamentary capacity, then evidence of the incapacity is usually provided by medical reports.
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- Caveats
  
  The person lodging a caveat must provide an address for service, and grounds for the objection. Rule 8.06(3.1) of the Supreme Court (Administration and Probate) Rules 2023, provides that the caveator must give particulars of any fact or matter raised in the grounds of objection. Strict time ...
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- Chain of representation
  
  When a sole executor dies before completing administration, that executor's own executor will become the executor of both estates. This is a common law position called the chain of representation.
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- Codicils
  
  A codicil is a document that amends, rather than replaces, a previously executed will. The will and codicil need to be read together to determine who are the executors and the terms of the will.
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- Co-executors – Authority to act
  
  Co-executors may be allocated specific roles in the will, with one executor to perform specific functions and another to attend to all other matters. An example of an executor with specific functions is a literary executor for administration of the copyright and royalty rights of the estate.
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- Commission – Executors and administrators
  
  The payment of commission may arise in several ways, including by way of provision in the will, by agreement by all fully informed beneficiaries who have capacity, and by an order of the court. Section 65 of the Administration and Probate Act 1958 allows an executor, administrator, or trustee ...
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- Construction of the will
  
  When a will is unclear a court may be required to construct the will maker’s intended meaning to give effect to the will. The court must have regard to will construction principles as well as to the ordinary meanings of the words used. Part 4 of the Wills Act 1997 deals with general rules ...
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- Contested will matters
  
  An interested person can oppose an application for a grant of probate or letters of administration by seeking to impugn the will which is the subject of the application. There are 5 standard grounds for challenging a will:
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- Court – Power over wills and estates
  
  The Supreme Court has jurisdiction, both by virtue of the legislation and as part of its inherent jurisdiction, over wills and estates. The County Court may hear certain matters. For small estates, s 71 of the Administration and Probate Act 1958 provides that a personal representative may ...
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- Death
  
  Causes of action survive death The general rule is that death does not affect the legal rights and obligations of the deceased.
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- Distribution
  
  Early distribution Although an estate can be distributed before six months has elapsed since the date of the grant, the personal representative will lose the protections included in the Administration and Probate Act 1958 and risk being held personally liable for any claims against the estate.
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- Duties – Administrators and executors
  
  An administrator or executor is obliged to disclose to the court all assets and liabilities of the deceased. This is done by way of the inventory of assets and liabilities which is annexed to the affidavit in support of the application for a grant of probate or letters of administration: s 28 ...
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- Executors
  
  An executor is a person named in a will who is responsible for carrying out the instructions of the testator, regarding the distribution of their assets after their death. The executor's primary responsibilities include locating and inventorying the deceased person's assets, paying debts and taxes, ...
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- Grants
  
  There are 3 main types of grant of representation:
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- Hotchpot
  
  A hotchpot or adjustment clause is used to take into account inter vivos gifts or loans, usually to the deceased’s children, so that when combined with the gifts to those children under the will, they all end up with the same benefit. In Re Tennant Mortlock v Hawker [1942] HCA 3 Dixon J said:
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- Informal wills
  
  The court can grant administration of an informal will. Section 9 of the Wills Act 1997 provides that the court may dispense with the usual requirements for the making of a will, altering a will, or revoking a will, if the court is satisfied that the document purports to state the testamentary ...
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- Injunction
  
  A dissatisfied beneficiary or claimant on an estate may seek an injunction from the Supreme Court to restrain the legal personal representative from dealing with estate property and particularly from selling real property. As with any applicant for injunctive relief, the applicant must give the ...
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- Insolvency
  
  Section 39 of the Administration and Probate Act 1958 provides for administration and the payment of debts, if the estate is insufficient to pay its debts and liabilities in full, and is not being administered under the Bankruptcy Act 1966 (Cth). See Morris v Smoel [2014] VSC 31 for an ...
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- Intermeddling
  
  An executor intermeddles, when dealing with estate assets before a formal grant is made. While there is nothing inherently wrong with this and it is not covered by legislation but is a long recognised common law concept.
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- Intestacy
  
  A person dies intestate if they die without having made a valid will. Their assets are distributed according to the laws of inheritance which usually follow a set pattern of distribution to the deceased person's family members, starting with their spouse and children, and then extending to other ...
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- Life estate or life tenancy
  
  A life tenancy, or life estate, is a proprietary interest in real property, capable of being registered on title. In the context of a trust creating a life tenancy, the party who holds the property is known as the trustee and the beneficiary is known as the life tenant. In addition to these ...
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- Joint mortgage responsibilities
  
  Section 33(4) of the Transfer of Land Act 1958 provides that:
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- Legislation
  
  Applicable legislation includes:
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- Letters of administration
  
  See Applications for a grant of probate or letters of administration.
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- Litigation
  
  The most common type of claim against an estate is a family provision claim. Another is a challenge to a will where an interested person opposes an application for grant of probate or letters of administration of the impugned will. For a detailed exposition of the considerations regarding such ...
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- Missing will
  
  It is possible to obtain a grant for administration based only on a copy of a missing will: see In the Will of Valerie Eve Robson (deceased) [2020] QSC 52 and Williamson v Pay [2020] QSC 66. There are no specific guidance notes on the Supreme Court’s website, but generally:
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- Multiple wills
  
  Theoretically, it is possible to have more than one will. This may be the case where the testator has assets in 2 or more different jurisdictions, typically Australia and another country. It is only necessary to prove the local will in each jurisdiction.
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- Passing over of an executor
  
  If an executor needs to be relieved of their duties before probate has been granted, they can be passed over. There are several reasons an executor may be passed over including ill health, they reside out of the jurisdiction, or they may be of bad character. To pass over an executor, a beneficiary ...
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- Personal liability of a personal representative
  
  Once a personal representative has a grant, assuming one is required, then they may distribute in accordance with the provisions of the will or in accordance with the intestacy provisions in the Administration and Probate Act 1958. This is subject to any claims brought against the estate within ...
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- Rectification of a will
  
  Section 31 of the Wills Act 1997 provides the court may make an order to rectify a will if the court is satisfied that the will does not carry out the testator’s intentions either due to a clerical error, or because the will does not give effect to the testator’s instructions. Applications for ...
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- Renunciation
  
  There is no compulsion on someone to accept the role as executor. The named executor, or one of multiple named executors, may renounce their office before any application for a grant is made.
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- Replacement or removal of an executor
  
  An application may be made for the removal or discharge of a personal representative, and the substituted appointment of a trustee company or other person as administrator: s 34 of the Administration and Probate Act 1958. This section can be used by one executor to seek the removal of a ...
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- Resignation of executor
  
  An executor may resign or renounce the office before applying for a grant. However, once probate has been granted an executor cannot resign but may apply to the court for discharge or removal: s 34 of the Administration and Probate Act 1958.
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- Superannuation
  
  Superannuation is not personal property. Unless there is a valid binding death benefit nomination, the superannuation trustee will use their discretion, in accordance with the terms of the trust deed and subject to superannuation law, to decide whether to pay the death benefit to the dependents or ...
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- Small estates
  
  Often a grant in a small estate is unnecessary. Most banks and other institutions will release assets without the need for a grant, although they will usually seek an indemnity from the recipient of the proceeds.
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- Survivorship
  
  On the death of a joint tenant the interest in the land of that joint tenant ceases and the other joint tenants automatically own the whole of the land. This is known as the doctrine of survivorship. For this reason, property which the deceased owned as joint tenant does not form part of the estate ...
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- Terminating lease after death of sole renter
  
  The estate of the deceased renter will be responsible for the normal clean-up and be liable for the rent until the termination of the residential rental agreement, subject to the provisions of s 91N of the Residential Tenancies Act 1997. Termination may be made by either giving written notice ...
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- The doctrine of renvoi
  
  Kong v Yan [2021] SASC 82 provides that the doctrine of renvoi requires a court of one jurisdiction to apply the law of a foreign country to the resolution of a legal dispute in that court’s jurisdiction. While there is some argument as to the precise scope of the doctrine of renvoi in Australian ...
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- Who can inspect the will of a deceased person
  
  Section 50 of the Wills Act 1997 lists the people who are entitled to see the will, including a revoked will or a purported will, after the testator has died:
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Family provision claims
- Generally
  
  The starting point for making wills is the idea of freedom of testamentary intention, that is, the idea that a person should be able to leave their estate to whomever they choose, and to exclude as a beneficiary whomever they choose. In Banks v Goodfellow (1870) LR 5 QB 549, at 564, Cockburn CJ ...
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- Adequate provision
  
  Pursuant to Part IV of the Administration and Probate Act 1958 an order can only be made if the court is satisfied that:
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- Adult children including step-children
- Affidavits
  
  Evidence in family provision cases is by affidavit, which must comply with the relevant Practice Notes. For example:
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- Apply for a grant
  
  If a grant for probate or administration is not obtained within six weeks of the date of the death of the testator, any interested party may apply to the court for an order calling on the executor, or any person having possession of the will, to show cause why that person should not bring the ...
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- Capacity
  
  A testator must have testamentary capacity at the time the will is executed in order to be valid. If it is alleged that the testator did not in fact have testamentary capacity, then evidence of the incapacity is usually provided by medical reports.
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- Claim
  
  An application to the court for a family provision order must be made within six months after the date of the grant of probate or of letters of administration: s 99 of the Administration and Probate Act 1958. That is, unless sufficient cause is shown for the court to order otherwise. To ...
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- Compromise
  
  Often an executor will seek to compromise a claim in the interests of avoiding court proceedings, and possibly preserving relationships within the family. However, there are a number of relevant issues the executor needs to consider, which were discussed by the court in Re Finnie; Petrovska v ...
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- Costs
  
  There is no longer a general rule that an unsuccessful applicant will have their costs paid from the estate. Rather, it is assumed that the usual costs orders for an unsuccessful party in civil litigation will apply.
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- Crisp orders
  
  A Crisp order allows the applicant to use the value of specific estate assets to secure appropriate accommodation and to meet their ongoing maintenance needs. In Thompson v Thompson [2015] VSC 706, the effect of a Crisp order was described as:
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- Dependency
  
  Several eligible person categories must prove dependency on the deceased. In Spata v Tumino [2018] NSWCA 17 the Court of Appeal analysed at [53]–[81], the requirements for dependency in detail, and found that the adult stepson of the deceased was not dependent on her.
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- Dependency and member of the same household
  
  The concepts of dependency, and member of the same household, in the context of ss 90(k) and 91(4)(d) of the Administration and Probate Act 1958 was discussed in Dunn v Perpetual Trustee Company Ltd [2020] VSC 611. This was considered more recently in Re Eddison; Kildair v Eddison & ...
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- Discovery
  
  Whether discovery of all relevant information can be made will depend on the facts. For a case relating to an unsuccessful application for discovery of documents see Re Fitzgerald; Voss-Lassetter v Piacun [2020] VSC 784.
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- Eligible persons
  
  Section 90 of the Administration and Probate Act 1958 defines an eligible person as:
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- Estrangement
  
  The Macquarie Dictionary defines estrangement as:
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- Extension of time
  
  Section 99(1) of the Administration and Probate Act 1958 provides that an application to the court for a family provision order must be made within six months after the date of the grant of probate of the will or of letters of administration. Section 99(2) provides that the court may ...
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- Family law orders
  
  Regarding the interplay between family provision claims and previous family law property orders, see Dark v Dark [2016] NSWSC 1223. This case dealt with a claim by a widow who was separated from the deceased at the time of his death. A financial agreement had been made under s 90C of the ...
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- Grandchildren
  
  Although a grandchild is included in the definition of eligible person in the Administration and Probate Act 1958 Act, one of the requirements in this category is consideration of the degree to which they were wholly or partly dependent on the deceased at the time of the deceased’s death. In ...
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- Intestacy
  
  A person dies intestate if they die without having made a valid will. Their assets are distributed according to the laws of inheritance which usually follow a set pattern of distribution to the deceased person's family members, starting with their spouse and children, and then extending to other ...
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- Legislation
  
  Applicable legislation includes:
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- Matters to be considered by the court
  
  In Re Dodson; Dodson v Dodson [2019] VSC 833 McMillan J referred to the relevant provisions of the Administration and Probate Act 1958 which the court will consider in a family provision claim:
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- Notional estate
  
  A notional estate claim is an application to the court to regain assets that were distributed in the three years before the death of the testator. The aim of the claim is to prevent someone from trying to avoid a family provision order by giving away their assets before they die.
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- Orders
  
  The court may only make orders for provision out of an estate if the court is satisfied that the claimant is an eligible person for whom inadequate provision has been made in the will, or on intestacy, and there are factors warranting the making of an order.
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- Effect of orders
  
  Section 97 of the Administration and Probate Act 1958 provides that:
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- Other orders
  
  The orders or directions the court may make in a family provision claim are not necessarily restricted to family provision orders. All solicitors will be familiar with the maxim that parties must come to court with clean hands.
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- Partners – Domestic and caring
  
  These are specific terms, as referred to in the definition of eligible person in s 90 of the Administration and Probate Act 1958, and are included in s 3(1):
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- Release of rights
  
  The Administration and Probate Act 1958 does not specifically provide for a person to grant a release of their family provision rights or seek approval of the court in doing so. However, by way of analogy with other jurisdictions, this may fall within the inherent jurisdiction of the court. Such ...
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- Spouse
  
  The Administration and Probate Act 1958 includes a number of relevant definitions:
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- Variation and revocation
  
  On the application of the personal representative or any person beneficially entitled to or interested in any part of the estate, the court may rescind or alter any family provision order: s 97(5) of the Administration and Probate Act 1958. Notice of the application is to be served on all ...
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Guardianship and administration
- Appointments – Involuntary
  
  The Guardianship and Administration Act 2019 provides for various types of orders that can be sought through application to the Victorian Civil and Administrative Tribunal (VCAT) including:
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- Appointments – Voluntary
  
  Up until September 2015 voluntary appointments of enduring guardianship were made under the Guardianship and Administration Act 1986. This changed when the Powers of Attorney Act 2014 came into effect. Appointments already in existence continued to be effective.
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- Jurisdiction
  
  The Victorian Civil and Administrative Tribunal (VCAT) has jurisdiction in relation to the Powers of Attorney Act 2014 and the Guardianship and Administration Act 2019. Orders may be sought from the Supreme Court in certain instances.
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- Legislation
  
  Applicable legislation includes:
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- McKenzie friend
  
  A McKenzie Friend will assist an unrepresented person in court. Although they are more common in family law and guardianship matters, they may be permitted in any court where an unrepresented person needs assistance to ensure fairness. Leave of the court is required. A McKenzie Friend provides the ...
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Medical treatment, planning, and decisions
- Generally
  
  The starting point for making wills is the idea of freedom of testamentary intention, that is, the idea that a person should be able to leave their estate to whomever they choose, and to exclude as a beneficiary whomever they choose. In Banks v Goodfellow (1870) LR 5 QB 549, at 564, Cockburn CJ ...
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- Advance care directive
  
  The person making an advance care directive may be an adult or a child. While we refer to them as a principal for ease of reading, this term is not used in the Medical Treatment Planning and Decisions Act 2016. An advance care directive sets out a principal’s binding instructions or preferences and ...
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- Appointment of medical treatment decision maker
  
  The appointment of a medical treatment decision maker allows a principal to formally appoint a person to make medical treatment decisions on their behalf. The person appointing the medical treatment decision maker is not referred to as a principal in the Act however we have retained that ...
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- Appointment of a support person
  
  Any person with decision-making capacity, including a child, can appoint another person, including a child, to be their support person. Only one support person can be appointed at a time: s 31. The role of a support person is set out in s 32(1):
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- Capacity
  
  A testator must have testamentary capacity at the time the will is executed in order to be valid. If it is alleged that the testator did not in fact have testamentary capacity, then evidence of the incapacity is usually provided by medical reports.
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- Legislation
  
  Applicable legislation includes:
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- Registration
  
  Advance care directives and the appointment of medical treatment decision makers and support persons can be uploaded by the principal onto the State Government’s MyHealth Record portal. If the principal would prefer not to do this, they can provide a certified copy to their appointees, in case ...
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- Revocation and resignation
  
  Resignation A support person or a medical treatment decision maker may formally resign, but only if certain requirements have been complied with: ss 39 and 40 of the Medical Treatment Planning and Decisions Act 2016.
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- Witnesses
  
  Witnessing an advance care directive, the appointment of a medical treatment decision maker, or a support person, requires the relevant form to be executed by the principal, or by an independent adult in the presence of the principal at their direction, in the presence of 2 witnesses: ...
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Powers of attorney
- Generally
  
  The starting point for making wills is the idea of freedom of testamentary intention, that is, the idea that a person should be able to leave their estate to whomever they choose, and to exclude as a beneficiary whomever they choose. In Banks v Goodfellow (1870) LR 5 QB 549, at 564, Cockburn CJ ...
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- Attorney
  
  Certain preconditions for appointment by an enduring power of attorney are set out in s 28 of the Powers of Attorney Act 2014:
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- Capacity
  
  A testator must have testamentary capacity at the time the will is executed in order to be valid. If it is alleged that the testator did not in fact have testamentary capacity, then evidence of the incapacity is usually provided by medical reports.
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- Corporations
  
  The Powers of Attorney Act 2014 applies to natural persons, not corporations.
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- Death
  
  Causes of action survive death The general rule is that death does not affect the legal rights and obligations of the deceased.
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- Delegation
  
  Enduring power of attorney Section 25 of the Powers of Attorney Act 2014 provides an enduring power of attorney does not have the effect of empowering the attorney to delegate a power under the enduring power of attorney.
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- Directions
  
  There is no prescribed wording for, nor restriction on, the directions that may be given in a power of attorney document. For example, the circumstances in which the power commences.
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- Directors
  
  A general power of attorney by a director, that is an appointment under the Act, does not enable the attorney to exercise the principal’s directorial duties. The principal is not empowered to make such a delegation. The company constitution may contain a specific power:
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- Duties and powers
  
  The duties of an attorney are set out in the enduring power of attorney section of the Powers of Attorney Act 2014: ss 63–70. None of the duties listed in s 63 are to be taken to affect any duty an attorney has at common law. There are certain principles that attorneys must abide by when ...
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- Execution
  
  For an enduring power of attorney the principal’s signature must be witnessed by two persons, one of whom must be authorised to witness affidavits: see s 19 of the Oaths and Affirmations Act 2018, or a medical practitioner. See s 11 of the Powers of Attorney Act 2014 for execution of a ...
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- Executor
  
  The personal representative of an estate generally cannot delegate the functions of their office and therefore cannot appoint an attorney. However, if the executor has never resided in Victoria or is absent or about to depart from Victoria, they may delegate the execution and exercise of their ...
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- Incommunicate
  
  This term relates to the situation when a person cannot communicate about their property or their affairs or cannot be contacted. In Cox v Goldcrest Developments (NSW) Pty Ltd [2000] NSWSC 763 the court held that being on the high seas and unable to be contacted did not constitute being ...
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- Insolvency
  
  Section 39 of the Administration and Probate Act 1958 provides for administration and the payment of debts, if the estate is insufficient to pay its debts and liabilities in full, and is not being administered under the Bankruptcy Act 1966 (Cth). See Morris v Smoel [2014] VSC 31 for an ...
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- Instructions
  
  The enduring power of attorney may be confined to personal matters only, financial matters only, or to both, or to specific matters: s 22(2) of the Powers of Attorney Act 1958. The powers may include conditions and instructions as to how the power is to be exercised: s 23(2)(a).
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- Interstate powers
  
  Section 138 provides that an enduring power of attorney made in another state or territory is recognised in Victoria. The interstate power of attorney must be valid under the laws of the state or territory in which it is made, but it cannot operate to confer power on an attorney in Victoria ...
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- Irrevocable power of attorney
  
  The critical factor for an irrevocable power of attorney is that it can only be given for valuable consideration. Such appointments are usually found within loan, franchise or other commercial contract documents, which provide for the lender, franchisor or contracting party to do certain things in ...
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- Joint attorneys
  
  Disputes Joint attorneys need to be able to work together and make joint decisions. VCAT may be consulted in the event of a deadlock.
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- Jurisdiction
  
  The Victorian Civil and Administrative Tribunal (VCAT) has jurisdiction in relation to the Powers of Attorney Act 2014 and the Guardianship and Administration Act 2019. Orders may be sought from the Supreme Court in certain instances.
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- Legislation
  
  Applicable legislation includes:
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- Limitations
  
  There is no limit or prescription on the limitations or directions that can be included in a power of attorney document and no magic words to create them. Any limitations and directions are best kept as simple and unambiguous as possible, for example:
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- Liquidator
  
  A liquidator may appoint an attorney to act on behalf of the liquidator in the administration of the company: Australian Guarantee Corporation Ltd v Registrar of Titles (1992) VicSC 208.
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- Power of attorney – Enduring
  
  An enduring power of attorney is distinct from a general power of attorney and continues to have effect even if the principal loses mental capacity after the appointment. The power can be confined to personal matters only, or financial matters only, or both, or to any matters specified in the ...
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- Power of attorney – General
  
  A general power of attorney that is in, or to the effect of, the form in the Schedule to the Powers of Attorney Act 2014 creates a general non-enduring power of attorney for the purpose of the Act: s 7. It is the simplest type of power, but it ceases to be enforceable if the principal loses ...
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- Registration
  
  Advance care directives and the appointment of medical treatment decision makers and support persons can be uploaded by the principal onto the State Government’s MyHealth Record portal. If the principal would prefer not to do this, they can provide a certified copy to their appointees, in case ...
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- Revocation and resignation
  
  Resignation A support person or a medical treatment decision maker may formally resign, but only if certain requirements have been complied with: ss 39 and 40 of the Medical Treatment Planning and Decisions Act 2016.
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Supportive attorney
- Attorney
  
  Certain preconditions for appointment by an enduring power of attorney are set out in s 28 of the Powers of Attorney Act 2014:
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- Capacity
  
  A testator must have testamentary capacity at the time the will is executed in order to be valid. If it is alleged that the testator did not in fact have testamentary capacity, then evidence of the incapacity is usually provided by medical reports.
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- Death
  
  Causes of action survive death The general rule is that death does not affect the legal rights and obligations of the deceased.
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- Duties and powers
  
  The duties of an attorney are set out in the enduring power of attorney section of the Powers of Attorney Act 2014: ss 63–70. None of the duties listed in s 63 are to be taken to affect any duty an attorney has at common law. There are certain principles that attorneys must abide by when ...
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- Execution
  
  For an enduring power of attorney the principal’s signature must be witnessed by two persons, one of whom must be authorised to witness affidavits: see s 19 of the Oaths and Affirmations Act 2018, or a medical practitioner. See s 11 of the Powers of Attorney Act 2014 for execution of a ...
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- Revocation and resignation
  
  Resignation A support person or a medical treatment decision maker may formally resign, but only if certain requirements have been complied with: ss 39 and 40 of the Medical Treatment Planning and Decisions Act 2016.
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- Supported decision
  
  A supported decision is a decision the supportive attorney is authorised to support the principal in making: s 84 of the Powers of Attorney Act 2014.
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Wills
- Generally
  
  The starting point for making wills is the idea of freedom of testamentary intention, that is, the idea that a person should be able to leave their estate to whomever they choose, and to exclude as a beneficiary whomever they choose. In Banks v Goodfellow (1870) LR 5 QB 549, at 564, Cockburn CJ ...
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- Ademption
  
  Ademption occurs when personal or real estate property is gifted under a will but is no longer in the will maker's estate when they die. The case of Dunn v Perpetual Trustee Company Ltd [2020] VSC 611 demonstrates the unintended consequences which may arise when a devised property has been sold by ...
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- Alterations
  
  Alterations to a will are permitted by s 15 of the Wills Act 1997. However they are only effective if they are executed in the same way as a will under s 7.
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- Beneficiaries
  
  Beneficiary liable for a debt to the estate If a beneficiary is personally liable for a debt owed to the estate, then the rule in Cherry v Boultbee (1839) 4 Myl & Cr 442; 41 ER 771 applies. The beneficiary is not entitled to participate in the distribution of the estate without paying their ...
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- Burials, cremations, and funerals
  
  A deceased’s wishes It is quite common for a will to include directions concerning the disposal of the deceased’s remains and their wishes for their funeral service. Such directions and wishes do not bind the personal representative.
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- Codicils
  
  A codicil is a document that amends, rather than replaces, a previously executed will. The will and codicil need to be read together to determine who are the executors and the terms of the will.
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- Construction of will
  
  When a will is unclear a court may be required to construct the will maker’s intended meaning to give effect to the will. The court must have regard to will construction principles as well as to the ordinary meanings of words. Part 4 of the Wills Act 1997 deals with general rules about the ...
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- Court made wills
  
  Any person may apply, on behalf of someone lacking testamentary capacity, including a minor, to the Supreme Court to make, alter or revoke, a will: ss 20 and 21 of the Wills Act 1997. Such wills are often known as statutory wills.
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- Dispensing with requirements for execution, alteration, or revocation of a will
  
  Section 9 of the Wills Act 1997 provides that the court may dispense with the usual requirements for making, altering or revoking a will, if the court is satisfied that the document purports to state the testamentary intentions of the deceased and that the deceased intended for the document to ...
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- Disposition of estate property
  
  Disposition of land A general disposition of land in a will includes leasehold land, whether or not the testator also owns freehold land, but this does not apply if a contrary intention appears, whether in the will or elsewhere: s 40 of the Wills Act 1997.
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- Divorce or annulment of marriage
  
  If the testator, having made a will while married, then divorces or has the marriage annulled, any appointment of the former spouse as an executor, trustee, or a power of appointment exercisable by or in favour of the spouse, in the will is revoked: see s 14. However, the appointment of the ...
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- Execution
  
  For an enduring power of attorney the principal’s signature must be witnessed by two persons, one of whom must be authorised to witness affidavits: see s 19 of the Oaths and Affirmations Act 2018, or a medical practitioner. See s 11 of the Powers of Attorney Act 2014 for execution of a ...
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- Executor
  
  The personal representative of an estate generally cannot delegate the functions of their office and therefore cannot appoint an attorney. However, if the executor has never resided in Victoria or is absent or about to depart from Victoria, they may delegate the execution and exercise of their ...
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- Extrinsic evidence to construe will
  
  When the meaning in a will is unclear or ambiguous the court will construe the will. In such proceedings evidence, including evidence of the testator’s intention, is admissible to assist in the interpretation of the language used in the will: s 36 of the Wills Act 1997.
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- Foreign wills
  
  If a testator owns assets in a foreign country, they have the option of creating a foreign will that will be legally processed and managed in the foreign jurisdiction. This type of will is drafted by a lawyer in the respective jurisdiction to meet local legal requirements and operates alongside the ...
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- Gift to the solicitor drafting the will
  
  If the solicitor drafting the will is to receive a benefit under the will, then it will not be admitted to probate until additional requirements of the registrar are met. See the Supreme Court’s Guidance notes for unusual applications.
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- Homemade wills
  
  The court in Jones v Robinson & Ors [2019] NSWSC 932 noted at [47] that:
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- Incorporation by reference
  
  A document may be incorporated into a will by referring to it. McDonald J stated in Fast and Ors v Rockman and Ors [2015] VSC 337 at [9]:
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- International wills
  
  An international will is one that is recognised as a valid form of will in all countries that have ratified the Convention Providing a Uniform Law on the Form of an International Will 1973. This convention seeks to harmonise and simplify proof of formalities for wills that have international ...
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- Legislation
  
  Applicable legislation includes:
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- Living wills
  
  In Australia, the term living will is not legally recognised. Its purpose though, is to clearly outline an individual's desired medical treatment if they are unable to give informed consent.
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- Making a will
  
  A will is not valid unless it is in writing and duly witnessed: s 7 of the Wills Act 1997. However, these provisions are overridden if a will is made pursuant to s 21, which provides that a will can be made for a person without testamentary capacity at the direction of the court.
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- Marriage
  
  Effect on existing will A will is revoked by marriage: s 13(1) of the Wills Act 1997, unless it is made in contemplation of marriage.
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- Minimum age of will maker
  
  Pursuant to s 5 of the Wills Act 1997, a will made by a minor, a person who is less than 18 years old, is not valid. However, there are several exceptions to this rule, namely:
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- Multiple original copies of a will – Conglomerate will
  
  If a willmaker executes more than one copy of the same will, then all copies of that will must be submitted to the Office of Probates. This will usually require additional information in the affidavit as to how many copies were executed, and whether they have all been submitted.
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- Multiple wills
  
  Theoretically, it is possible to have more than one will. This may be the case where the testator has assets in 2 or more different jurisdictions, typically Australia and another country. It is only necessary to prove the local will in each jurisdiction.
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- Mutual wills
  
  People are free to enter contracts to leave property by will. What makes wills mutual, rather than reciprocal, is the inclusion of a term in the agreement that a will is not to be revoked. See the precedent Mutual Wills – Contract to Make Mutual Wills on the Wills matter plan.
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- Promise to make a will or a bequest
  
  A testator may be bound to honour a promise to make someone a beneficiary in their will, or to leave certain property to a certain beneficiary, if the promisee has relied on that promise: Delaforce v Simpson-Cook [2010] NSWCA 84.
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- Property that can be dealt with in a will
  
  Any property personally owned by the testator in Victoria can be disposed of in a will made in Victoria. This extends to property to which the testator’s legal personal representative becomes entitled in their capacity of legal personal representative, after the date of the testator’s death. For ...
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- Rectification
  
  Section 31 of the Wills Act 1997 provides the court may make an order to rectify a will if the court is satisfied that the will does not carry out the testator’s intentions either due to a clerical error, or because the will does not give effect to the testator’s instructions. Applications for ...
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- Revival of a revoked will
  
  A revoked will can be revived by re-execution, or by execution of a codicil showing an intention to revive all or part of a revoked will. Revival of a will which was partly revoked and later revoked as to the balance only revives that part of the will most recently revoked unless a contrary ...
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- Revocation
  
  Sections 12–14 of the Wills Act 1997 deal with revocation of a will. A will is revoked by:
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- Solicitors
  
  Appointment of a particular firm A clause in a will that purports to require an executor to appoint a particular firm of solicitors to act on behalf of the estate is not binding.
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- Statutory wills
  
  A statutory will is a will made by a court under a statutory provision.
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- Superannuation
  
  Superannuation is not personal property. Unless there is a valid binding death benefit nomination, the superannuation trustee will use their discretion, in accordance with the terms of the trust deed and subject to superannuation law, to decide whether to pay the death benefit to the dependents or ...
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- Survivorship clause
  
  Most wills require that a beneficiary survive the testator by 30 days. Section 39 of the Wills Act 1997 states that beneficiaries to whom a disposition of property is made must survive the testator by 30 days; otherwise, they are deemed to have predeceased the testator. See also ...
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- Testamentary capacity
  
  If a will is rational on its face and is proved to have been executed and attested in the manner prescribed by law, it is presumed in the absence of evidence to the contrary, to have been made by a person of competent understanding: Timbury v Coffee [1941] HCA 22. The requirements for testamentary ...
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- Testamentary discretionary trusts
  
  A testamentary discretionary trust is a trust that is established by will and comes into being on the death of the testator. The testator appoints the trustee and sets out the terms of the trust in their will. They nominate the beneficiaries who are eligible to receive the trust's income and ...
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Wills and Lifetime Planning

This publication guides practitioners in Victoria through taking instructions, advising on, and preparing wills, powers of attorney, advance care directives and appointments of a medical treatment decision maker.

Overview

Precedents in this publication include:

3 Matter Plans Included

Our Authors