Wills Act 1997

the making, alteration, revocation and revival of wills, including—

the capacity of minors to make wills; and

the effects of marriage and divorce of testators on wills made by them; and

the capacity of the Court to authorise the making or rectification of wills in certain circumstances; and

the construction of wills; and

other general matters in relation to wills; and

the repeal of the Wills Act 1958 and the amendment of the Administration and Probate Act 1958.

Section 1 and this section come into operation on the day on which this Act receives the Royal Assent.

Subject to subsection (3), the remaining provisions of this Act come into operation on a day or days to be proclaimed.

If a provision referred to in subsection (2) does not come into operation before 1 January 1999, it comes into operation on that day.

In this Act—

any gift, devise or bequest of property under a will;

the creation by will of a power of appointment affecting property;

the exercise by will of a power of appointment affecting property;

a person who was at the date of death in a registered relationship with the person; or

a person to whom the person was not married but with whom the deceased person was living at the date of death as a couple on a genuine domestic basis (irrespective of gender);

an Australian legal practitioner; or

a justice of the peace appointed under section 7 of the Honorary Justices Act 2014; or

a person who is a member of a prescribed class of person;

For the purposes of the definition of domestic partner in subsection (1)—

registered relationship has the same meaning as in the Relationships Act 2008; and

in determining whether persons who were not in a registered relationship were domestic partners of each other, all the circumstances of their relationship are to be taken into account, including any one or more of the matters referred to in section 35(2) of the Relationships Act 2008 as may be relevant in a particular case.

This Act applies to a codicil or other testamentary writing in the same manner as it applies to a will.

A person may, by will, dispose of—

any property to which the person is entitled at the time of his or her death, whether or not the entitlement of the person did or did not exist at the date of the making of the will; and

any property to which the personal representative of that person becomes entitled, by virtue of the office of personal representative to that person, after the death of that person—

In this section property includes—

a contingent, executory or future interest in property—

whether the person becomes entitled to the interest by way of the instrument which created the interest or otherwise; and

whether that person has or has not been ascertained as the person in whom the interest may become vested; and

a right of entry or recovery of property or a right to call for the transfer of title of property.

a minor may make a will in contemplation of marriage, and may alter or revoke such a will, but the will is of no effect if the marriage contemplated does not take place;

a minor who is married may make, alter or revoke a will;

a minor who has been married may revoke the whole or any part of a will made while the person was married or in contemplation of that marriage.

A will is not valid unless—

it is in writing, and signed by the testator or by some other person, in the presence of, and at the direction of the testator; and

the signature is made with the testator's intention of executing a will, whether or not the signature appears at the foot of the will; and

the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and

at least two of the witnesses attest and sign the will in the presence of the testator but not necessarily in the presence of each other.

Subject to the requirements of the remote execution procedure, a statement in a will that the will has been executed in accordance with this section is not necessary for the will to be valid.

Where a testator purports to make an appointment by his or her will in the exercise of a power of appointment by will, the appointment is not valid unless the will is executed in accordance with this section.

Where a power is conferred on a person to make an appointment by a will that is to be executed in some particular manner or with some particular solemnity, the person may exercise the power by a will that is executed in accordance with this section, but is not executed in that manner or with that solemnity.

For the purposes of this section, a will may be executed by using the remote execution procedure and that will is a valid will.

For the purposes of this section, a signature may be an electronic signature if the remote execution procedure is used.

For the purposes of this section "in the presence of" includes being present by audio visual link in accordance with the remote execution procedure.

A will may be executed under this Act in accordance with the remote execution procedure set out in this section.

One of the witnesses must be a special witness and, if more than one witness qualifies as a special witness, only one of the special witnesses is to be the special witness.

All elements of the remote execution procedure must be carried out on the same day and within Victoria.

The testator must either—

sign the will with all witnesses clearly seeing that signature being made by audio visual link or a combination of physical presence and audio visual link; or

direct another person (the substitute signatory) to sign the will with all witnesses clearly seeing and hearing the direction of the testator to the substitute signatory and all witnesses and the testator seeing the substitute signatory's signature being made on behalf of the testator by audio visual link or a combination of physical presence and audio visual link.

Subject to subsection (6), any witness who is physically present with the testator then signs the will in accordance with the requirements for witnesses under this Act.

The special witness must sign the will as the special witness last, whether the special witness is physically present with the testator or not.

The will is then transmitted by electronic communication to any witness attending by audio visual link who must—

be reasonably satisfied that the document which the witness is to sign is the same document that the testator (or the substitute signatory on behalf of the testator) signed; and

ensure that there is on the will a statement that the witness witnessed the will by audio visual link in accordance with the remote execution procedure; and

sign the will as a witness with the testator clearly seeing the signature of the witness being made by audio visual link; and

if the witness is the special witness, in addition to complying with paragraphs (a) to (c), the special witness must check the will for compliance with the remote execution procedure and ensure that there is a statement on the will setting out—

that the will was signed and witnessed in accordance with the remote execution procedure; and

that the person is a special witness and what type of special witness the person is; and

whether an audio visual recording was made of the signing or witnessing of the will by the remote execution procedure.

If a will is executed in accordance with the remote execution procedure, the document which has been checked and signed by the special witness in accordance with section 8A(7) is the valid will.

The place of execution of a will executed in accordance with the remote execution procedure is the place where the testator is located at the time the will is executed.

A document purporting to be a will other than the will referred to in subsection (1) cannot be used unless Division 3 of Part 2 or Part 3 applies to it.

Subject to subsection (3), counterpart documents do not constitute a valid will.

An audio visual recording of the execution of a will by remote execution procedure may be made only if all of the parties to the procedure consent to a recording being made.

The making of a recording or the failure to make a recording referred to in subsection (1) does not affect the validity of the will executed by the remote execution procedure or the use of that procedure.

The use of the remote execution procedure applies in addition to any other duty or obligation under any Act (including any Commonwealth Act) or at common law applying to a person as a testator or witness to a will or other testamentary document.

The use of the remote execution procedure does not limit any requirement imposed by this Act by which a person must not write or do something without first being satisfied of certain matters.