To make a valid Will you must:
- make the Will in writing
- sign the Will in front of two or more witnesses.
It is also a good idea to date it at the time of signing.
At least two witnesses are required
You must sign your Will in front of two or more witnesses. The witnesses must also sign the Will either when you are present, or remotely using an audio visual . This means that the witness does not need to be physically present to witness a signature as long as:
- one witness is a lawyer or justice of the peace
- they can see the Will-maker sign the Will
- all sign on the same day
- the witness includes a statement that all of the requirements have been met.
If you and the witnesses are present when the Will is signed, you must sign the Will:
- at the foot of each page, if there are multiple pages
- using the same pen.
You must have the mental capacity
To make a valid Will you must also have testamentary capacity. This means that you are not suffering from a disorder of the mind or sane delusion.
The test for testamentary capacity is that you must know and understand:
- what a Will is – the nature and the effect it has
- approximately what you have to leave in a Will – you don’t need to know the exact value
- any reasonable claims that may be made against your property, for example, a claim by someone who is financially dependent on you.
Avoiding a challenge by getting an affidavit
If there is something unusual about the signing of the Will, you can get an affidavit to prevent possible problems or challenges later.
For example, you could get a doctor to assess your capacity and sign an affidavit about your capacity at the time you made your Will.
An affidavit should state that you are of sound mind and you understood what you were doing when you signed the document. This may prevent a later challenge to the Will.
It’s a good idea to make sure the doctor is experienced in making these assessments. It is advisable for the doctor to witness the Will being signed.
Marriage and divorce
Marriage and divorce affect the validity of a Will. See Changing a Will.
Writing your own Will
The Law Handbook has an example of a simple model and information about the things you might like to put in a Will. It is a guide only.
When you are making your Will, also consider making your powers of attorney and choosing a medical treatment decision-maker. A Power of attorney is a legal document that allows you to choose who will make decisions about things like your finances or lifestyle if you are not able to make these decisions yourself.
A medical treatment decision-maker is someone you can choose to make decisions about your medical treatment if you can no longer make these decisions yourself. You can also choose someone to help you make these decisions.
You can also state the medical treatment you would like to have in future by making an Advance Care Directive. Your doctors and your medical treatment decision-maker have to follow this directive in most cases.
The Office of the Public Advocate has information about powers of attorney and medical treatment .
Find out how you can get other support for Wills, estates and powers of attorney.
Disclaimer: The material in this print-out relates to the law as it applies in the state of Victoria. It is intended as a general guide only. Readers should not act on the basis of any material in this print-out without getting legal advice about their own particular situations. Victoria Legal Aid disclaims any liability howsoever caused to any person in respect of any action taken in reliance on the contents of the publication.
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Reviewed 10 April 2022